please the court the first amendment should be enough to protect freedom of speech and academic freedom the institution of tenure should not be needed to protect those constitutional rights the first amendment should be enough to protect against retaliation because former dean nailed retaliate against dr weatherby for exercising his free speech rights on the issue attend here he has this court to reverse the judgment of the trial court and remand this case for further proceedings not the weather be assisting with scholar has been a vocal participant in the debate on tenure for most of his academic career he has been invited to write on this subject by outlets such as business week the financial times in the huffington post's and his advocacy on the tenure issue has been covered by other media outlets been awarded tenure and has respectfully resigned for different times in his academic career at different universities where he has served he has effectively served as a full professor without tenure for the last twenty five years he was granted and he respectfully declined tenure at texas tech having spoken out against tenure he has now been subject to retaliation as noted in the pleadings in the briefing dr whether his motives here in this litigation are not financial he has stated that any damages that he would receive ms litigation will be awarded to students scholarships his motivation is to establish that freedom of speech should provide academic freedom dr weatherby is simply asking for his day in court to accomplish this his position on tenure interestingly happens to be the majority opinion of public opinion as well dr weatherby is an insider in higher education who has acknowledged the abuses of tenure and this is a matter of public concern the district court dismissed the case based on one fatal flaw the court found that the issue of tenure as a matter of law is not a matter of public concern that is clearly erroneous and so this court should reverse and remember this case back to the court the fact that several media outlets have in fact invited dr weatherby to publish issues articles on the abolition of tenure should be sufficient without more to establish that his speech addresses a matter of public concern for the united states supreme court holding in two thousand and fourteen lane versus franks in our pleadings we also note that there were other publications by other authors before dr weatherby speech on this issue of tenure as a matter of public concern and we've syud the court to the october twenty twelve article in the texas monthly magazine entitled storming the ivory tower which talks about academic reforms including tenure we've also sighed in our pleadings to an august two thousand and twelve wall street journal article we cite a paragraph seventeen of our first minute complain again that is another article and national news outlet that discusses tenure that was written by other authors not even dr weatherby which predates the retaliation here and so as a matter of law tenure is a matter of public concern and there should be therefore should be worthy of free series protection under the first amendment as dr weatherby a pint in a december two thousand and twelve article again that he was invited to write for the huffington post he said quote outside the ivory tower tenure is not viewed well by business leaders and taxpayers they resent that underperforming faculty have unwarranted job security at a time when the rising cost of a college education is increasingly burdensome close quote next in his chronology order of publishings on this issue tenure in march of tw thirteen the harvard business review published an article authored by professor weatherby entitled quote it's time for tenure to lose tenure close quote as the as the article's title implies he is talking about tenure as an institution and debating its merits about two months after that harvard business review article was published former dean lance nail terminated dr whether his position as the business or dr whether he had served for distinction for years before dean male came on the scene shortly after that more retaliation suit in july of two thousand and thirteen dr weatherby was removed as a professor from a top entitled quote tenure system side stifles business schools close quote again dr whether he was talking about the issues of tenure generally in that article and in about a month later more retaliation a causal link between his protected speech and the unconstitutional retaliation next in the chronological chain in august of two thousand and thirteen dean nail told dr weatherby i don't want to be in the wall street journal and the wall street journal article that deno referred to talked about dr whether these views about tenure generally there is evidence therefore that then the nail had knowledge of doctor whether the speech didn't like it and there's temporal proximity between the retaliatory actions the smoking gun of his comments and the retaliation that happened and thirteen next in the chronological order dr weatherby had a grant from the best buy corporation revoked from him he had worked years to stablish that relationship that corporation in the business school it was a half million dollar grant dr weatherby was in line to be able to use fifty thousand dollars of that grant money to help support his research dean nail yanked that grant and then inexplicably returned it to best buy even though the entire grant had been previously approved there's no other way to explain that except for retaliation next in march of two thousand and fifteen professor weatherby was assigned a fifty percent increase in teaching operating as a full professor without tenure and he was given a demotion in terms of increasing his teaching load which made his scars from scarlett research more difficult to do speech involves a matter of public concern when it can be fairly considered as relating to any matter of political social or other concern in the community or when it is a subject of a legitimate news interest that is subject of a general interest and value and concern to the public that's what the united states supreme court held recently in elaine versus franks in twenty fourteen the fact that the financial times businessweek and the huffington post invited they sought out dr weatherby and said we'd like to get some comment from him on this national issue of tenure the fact that those national media outlets invited his comment is proof that dr whether it was contributing to a national debate and that his speech was the subject of a legitimate news interest thereby satisfying the united states supreme court test for protection of free speech as a matter of public concern the supreme court has also held the quote there is considerable value in encouraging rather than inhibiting speech by public employees because government employees are often in the best position to know what ails the agencies for which they work the court also held in a different case that quote the interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it again the mere fact that there were two other publications in the national genre that we were able to cite two that predate dr whether these writings and these are issues on tenure that were published shows that the district judge's reasoning was inferred tenure is indeed a matter of public opinion and therefore is worthy of first mere protection and that was the sole basis public concern shift gears if you will to there at least was within the scheme of all this that some of the claims raised here were barred by collateral estop claims and help us with understanding whether or not they are barred or whether they're still alive because of the other arguments that you know yes cheech as steward this second case deals with a separate second and later fact pattern of retelling so dr weatherby had hoped that once this new dean kamen he could just go back to work and just do his job and that didn't happen so these claims that we're suing on in this instant lawsuit arose after the filing of his last complaint in the prior lawsuit these are claims that arose after june seventeenth two thousand and thirteen so the claims about the replacement being are placed as the m b a student advisor revocation emeritus status on the advisory council yanking of the grant money denial of travel reimbursement taking away his end professorship and demotion to a professor a practice all these claims arose after june seventeenth two thousand and thirteen the other side wants to really get the past and we're not here to do that the claims in this law court found that dr weatherby had not alleged sufficient facts to show that the fend it was aware of his speech that certainly isn't the case here we have pled evidence that dino was indeed aware of the speech in fact he complained about the speech to dr weatherby so again that was an issue the fifth circuit raised in the first case that isn't a problem here there was also a question the fist circuits mine about whether there was proof of publication of this issue on tenure so there's a nexus between actual speech and the retaliation and again here that's not the issue either we have plenty detail chart showing in chronological fashion the different speech outlets where dr well he published his protected speech and the retaliation to show the close temporal proximity and it footnote three of our main brief footnote three of our principal brief we show the several articles that dr weil weatherby wrote on the issue of tenure generally the didn't affect his and that wasn't talking about his employment could not well be is a leading thought actor on this issue and the wall street journal is not that him her business use not going to ask people like that to just whine about their own job conditions they can adopt a way because he's a leading thought proponent on this issue and so this this speech is not just speech about his own john conditions it's speech about remaining issues in this appeal is whether whether he played sufficient facts to establish that his publications plausibly motivated the adverse employment actions that occurred after june seventeenth two thousand and thirteen the answer that question is no despite extensive discovery whether he did not allege any adverse employment action was motivated by his publications or that nail was even aware of those publications in fact he specifically alleged other motives for the pleading you know could there be more but i mean we've got the federal rules require notice pleading so i mean if we're here on summary judgment then you know like ok what's the record show but he's pleading so with two rounds of litigation oh it's going on all this back and forth and so on and so forth i mean is it what it paul is saying that he isn't even plausible a made a connection in i mean is this really kind of as an outlier barebone i mean i understand ever see the argument but i'm just saying should we just not even pay attention to you know sort of what's going on it having been  people for gore before said it was neck it's back he replete so does that count for nothing as you just i think you know you do have to assume the truth of the facts that are alleged but the problem in this case is that there are no facts alleged that would plausibly support causation in this case the only thing and this is pointed out in conceded and whether b s reply brief the only thing he points to for this this two of his reply the problem is his complaint was filed after extensive discovery and this is as you mentioned this is the second round there's also other state but occasion surrounding this case so there's really no excuse for him not to plead the the facts necessary to show causation in this case the chart that he produces in his amended complaint and he references in his opening argument does not create a plausible inference of causation for several reasons the first is that short makes no allegation of causation it merely charts the temporal proximity of certain publications many of which were not authored by weather  were quote because of his anti tenure views and his lawsuit and quote that's at our way three thirty nine so there are only two claims that are not are very stiff are they didn't specifically allege were motivated by something besides the publications and those are being replaces it as a faculty advisor to an m b a association and then on extension of the stevenson chair and for those two claims he makes no allegation of causation whatsoever now so what we have here is we have simply a bare allegation with simple proximity presented within it without any factual connection between the didn't he didn't enjoy or he didn't want him to have his name mentioned in the wall street journal or whatever articles professor whether he was writing because i don't want to end up in the wall street journal again it was only a reference to that blog post that whether we did not write furthermore weatherby makes no allegation that that reference or even that knowledge of that blog post is county school district case that timing alone timing alone does not create an inference and quote ever tell you and that's what we have here we have timing alone  when when you overlay the specific allegations of motive that are not related to his publications including his entitling your views his original lawsuit and his rejection of tenure there's no reason to  think that mere temporal proximity would make it more likely that these publications were the cause for these alleged adverse actions than any of the specifically alleged motives that he also alleges throughout his lawsuit at most import proximity indicates that causation may be possible or is consistent with liability not that it's plausible which is the minimum so to summarize whether b failed to meet his basic pleadings requirement in this case after extensive discovery you fail to allege causation and he have militants you alleged facts that would support causation and to just to follow up on one hundred one point that that whether it be noted in his in his brief and libraries that we raise this for the first time in this court that is actually e mails because he did not want his actions to be profound again in the wall street journal i e may twenty second two thousand and thirteen which he was still angry about thirty in other details about further at paragraph one hundred seven of the pleading dr will be played quote dean mail disagreed with dr whether b s anti tenure conduct and or speech which legally constitute speech and is considered to be a threat to the institution of tenure which is the serious of which is the subject of serious public debate at this time so i've just in just a moment put a handful of provisions were doctored but it made it very clear that he was retaliated against not for some a morpheus reason but because of retaliation for his views on tenure his speech on tenure so the the cleanings are player and they support really a good looking at the court's order though it below the district court stopped his analysis at the matter of public concern stage and a further addition addressed this issue are the pleading sufficient that he engaged in protected speech that dean dale was aware of at least one of these publications in the wall street journal again where dr weatherby was talking about the issue of tenure generally and he pled very close temporal proximity between the speech and the retaliatory actions and therefore there's ample pleading under it paul and twaddling to sustain dr whether these employment without him being too near his employment contract just covers sort of the basics yes your honor he has an employment contract with texas tech it's a year to year contract