good morning i represent mr pearson she was a long time employee of the city of augusta and i'm going to start the substance of my argument with the due process argument and hold the details of the facts relative to gender race hostile work environment retaliation that all occurred between december two thousand and eleven and the may nd the motion it's our position in the district court erred in not applying louder male straight forward in some of the subsequent th circuit cases that applied straight forward without mckinney versus pate because in this case on may nd miss pearson the summons to a meeting and  mr shanahan handed her a letter saying your demoted from a position of an operations manager to a labor no notice to her that she might be demoted even get half or pay from a position of a manager to a labor in there is no and georgia has no remedy for that no state court remedy that provide notice an opportunity but you could have gotten a remedy to re to require them to do it over with proper notice and here under georgia law we've held that main we've been wrong all this time i think that under louder male it's straightforward the we don't have to exhaust our georgia remedies we are entitled to a louder mail to be applied it's it's not just an exhaustion mckenney be paid provides that if the state provides a procedural remedy there is no federal proceed jewel remedy because by definition you've got a procedural remedy in state court and therefore there's no violation of procedural due process ok this policy manual sad that you only get a review by an administrator subsequently you can't then take that demotion you can't take a demotion to court if this had been a term a nation georgia law says you can tie a procedural valeska and to state court then anything and a manual employment manual doesn't matter you i think that i think that it stinks in is that those cases in which there wouldn't be a meaningful opportunity to do that and the right has been deprived now the state where you about loudermilk you say you have loudermilk survives but and one of the fact the pre adverse action process that a person you are goes in tile to is necessarily not terribly formal written under a ladder mill and your client had noticed too that they had been talking about this for two to three months she had been confronted with the fact that notwithstanding having been told ten years before she couldn't type this comp time that she kept doing it and she kept doing it off the books and she was allowed to give her explanation and perhaps wasn't a formal hearing with the judge but certainly would you agree she had been confronted with what they were concerned about and had  given her response well there's two through parts to the notice one is how serious will be the punishment so that you could assert she could have asserted every example person in the department accrued and took k does require that she be given notice of the seriousness of the punishment so she can proffer why that outcome would be a denial of due process or totally unfair it isn't just notice of what you did wrong it's also on meaning it has to be notice of what the punishment might be so that she can respond to that you don't think a person that had been confronted with this ten years before it's a don't do it again and for the under the direction of the department director was given comp time that was the dirty little secret of the whole operation of augusta every every example person manager of accrued and use time it continued after she got demoted in may of two thousand and twelve every example person continued to get comp time accrued and use she has not a criminal she is not the only one doing it no that was a department wide policy to keep people in the rec department in fact when tom back was before but your argument is she didn't have sufficient process to let her know she might be demoted and my question was they told her what they were concerned about they had an exchange they talk she gave her defense and i'm not understanding why that's not sufficient process even illegal chief judge barnes said about that that there was post terminations process in the post germination process that was followed within the department is one thing and chief judge carnes was making a separate point there was however early in the investigation a point  so this was just a pretext to use against her to demote her when she challenge that we had all that we had all and you have no quarrels with her post them oh well i guess i'm post emotion process you have no how it happened in the substance of the city administrator sad oh i thought misunderstanding hand had reviewed the evidence and he was just there to review shanahan's decision so no one ever really reviewed the evidence isn't your process they gave her was too late my understanding well your contention was that the decision her demotion was a fact he made too and so she the act was taken before she had a chance to engage and the rationale for pre deprivation process in law to real is give the age of the employee knowledge of what the charges who have the employee come in because maybe they can talk the agency out of the action and save all the later problems yes and you can't if you're going to allow it to happen if you have only a host deprivation remedy and state law you can't ever go back and give the agency the opportunity to decide not that louder mel entitles them to have that's a deprivation but it's not a violation of procedural due process until and unless the state is not willing to provide a remedial procedure to correct that either money or reinstatement i want not that i mean mckinney didn't say in post deprivation that all he said pray deprivation are post deprivation it doesn't become a constitutional violation procedural due process unless and until the state doesn't provide a remedy and we haven't cotton in other cases that system of georgia provides a remedy for our pre deprivation or for pre adverse action through mandamus the adverse action had already occurred i know what we said and mcanany it provides a remedy for getting it undone and that's all that procedural due process requires now that may be wrong but it's an on bond decision that binding on us all right i feel i've i've read louder mail to say that if if the damage i would say what you're saying is imposing an exhaustion requirement no no no no i understand that what it says is you can exhaust are not you can exhaust and lose and that's still not a procedural due process of our lation because you had a remedy it didn't remain anything in your view because you lost but you don't have a right to when you just have a right to the court nailed this directly on the head in this case in that it is augusta's position that two fold one that i got that appellant in this case melinda pierson did receive sufficient procedural due process both pre adverse action and poster adverse action but additionally even if the court were to find that she did not or had not that she had the mandamus action provided to her by the state of georgia which she did not take it and take advantage of in this case there was an ongoing investigation with regard to the time card fraud allegations plaintiff admitted that she was aware of on may to and you agreed with that with that assertion of fact your honor it became affective on may nd two thousand and twelve she was provided a notice or proposed disciplinary action on may hasn't has she been as she been given the notice of why this is happening to her before the action was taken your honor there is there is she was talked to several times throughout the investigation as to why the why potential action would be time she filed her her defense of the act had been taken she had been placed in a lower position yes your honor so there was no chance that they would change their mind action had been intended to motion had to happen there is a of the administrator who can do as are temporarily in another position but could well have gone back to her original position yes if that if the administrator had found in his pearson's favor she would have at that point the demotion would have been overturned she would have been put back in her  again she would had then had the administrator fred russell agreed with and found that miss pearson's over one hundred dollars pages of documentation supported the claim that she should not be to moated she would have in fact been placed back in the previous position and would have been awarded back pay for that time period in this case instead after that mystery of hearing the decision to vote was in fact upheld and at no time in th process did ms pearson ever go and seek mandamus claiming that the process that she was given was insufficient she had been given some process throughout the entire investigation as well as through the demotion process  and in this case we do have to consider how state law phil fits into this because we do have a you know a personal menu that is an ordinance that was specifically states that her actions can lead to will lead to disciplinary action up to terminations so she did have notice that her actions could lead up to terminations and this case the court correctly pointed out previously that she had been warned on multiple occasions that she did not have any right to cab time she did not have the right to use any come time now only ten years earlier when she attempted to use it and they they told her then but most recently when she when she was out on leave between may of two thousand and twelve in december of two thousand and twelve miss pearson when she was out tried to use come time again and was again told by both human resources the finance department that you are exempt employee and you don't have any comp time to use which is why she was allowed to use catastrophic leave the connection of or the fact that exempt employees don't have the right regardless of what the actual practice or don't stop was don't have the right to comp time is tied into the purpose of comp time which is to avoid falling the f l s is that the deal in other words you can't work people more than forty hours a week unless they're exempt and when we say example we're talking about exempt from the n f l s actually regs that hold you can provide comp time to nonexempt employees rather than paying them over time for working more than forty hours one particular week or more than eighty hours in two weeks accept her and the she was not in the reason the exempt employees were given it is that the employer didn't have to in order to comply with f l us a correct your honor as an exempt employer employee employer and i think it's important to point out as the court did that plaintive had a previous notice of her violations and continue to engage in this behavior because i believe on him when that opponent comes back up here  this prior engaging his bad behavior prior being told several times that you cannot do this and yet continuing to engage in this behavior so from that perspective  bateson under our procedures you're confined to the issues that you're right it's an opening because she had no opportunity to be replied to any other argument of issues any other issues so were on the procedural deprivation which i gather to be is your primary album non exclusive point on appeal and we'll consider the other points on the brakes now came i had reserved those gender race and all that at the outset of my statement to ors material for the issue at hand the issue at hand is whether all example employees all management employees in this department were as a matter of hartlan policy longstanding and existing that continued clear through after the demotion into the summer in a meeting with shanahan and the other employees this is how we will do example comp time all management employees got comp time by a benefit of an ornament which the employer may bestow so they don't have to pay more take public tax dollars and pay higher salaries so that when people are working these specially vance and working one hundred hours a week they can take comp time now the comp time that she accrued and that was used that and that was in dispute was accrued in two thousand and eleven she goes out with mersa because she contract of infection from crawling underneath the house so mr back the director wanted to use the internal rec department comp time and wanted to use the internal rec department comp time to get her some paid leave so she could pay her insurance in august mr back sent that letter downtown downtown knows they don't keep on the books the comp time that's up there because someone might then claim when retiring you owe me money for the comp time  wrecked apartment gives is a matter of a blessin i believe each so that's why we have a dual system going on so she comes back in two thousand and eleven december she starts trying to write up sam smith gets in the argument if she is granted four days leave her supervisor granted that leave there's no dispute that the supervisor approved the use of that leave the way the leave would work is your your regular time card for downtown is going to show you're working and you're going to get paid for it but you're actually off and it's approved by the director of the of the rec department the city policy manual says you shall follow the orders of your supervisor that functionally is the test of what employment is you look at the you look at the actual work place and how it things are actually done the policy manual says follow your supervisor as a practical matter employees do what their supervisors tell them to do that she did not do anything different than anything any other example employee did accru comp time that was given by the director in that department and it continued after the demotion after the commotion and so when she shows busy up on may nd she is read the letter by mr shanahan you are demoted now here's your letter your demoted that's it bingo she's done she then shows up as a laborer she's assigned to work as a laborer and on may  th i think it is she's assigned to work on her hands and knees chip and tile and then she injures her back and then she finds out when she's out of the war and  shanahan's thinking he can get rid of or he goes ahead and tells all the other exempt employees yes you can use your it you can use this accrued comp time but please try to do it within the two weeks that you accrue it so the pattern of continuously approving the use of comp time for other exempt employees puts her squarely with people who did not get punished for husing accruing comp time understanding hand who became was the assistant city manager he became the interim h r director and beach and he was the head of the rec department after they fired tom back now tom beck can be fired by the commission and for any reason or no reason at all the pleasure he asserted before the commission the comp time that that was the issue before the commission that calm time that's what he argued but there are a lot of other racial things going on over him going to how many others ramp employees  there i we have evidence of showier smith there are four others like that we have a list there's a list of them in the brief you'll see report you find the name pretty sure you'll have the other names there too and so those are the exam people and i think mr howe has examined all so but if you'll see the name show you're lanham perhaps but there are four others who we listed as she got she she went out five days on con time on this on this a blessedly each comp time so it was a term and condition of the of a public employers employment that was critical to the to the operation even the city manager admitted in new that the wreck department did this because they insisted that they pointed to put on class a events ok thank you coun will take their case under submission and we're going to take a ten minute break here before we get to the final case