case number thirteen two seven zero four james wallace versus wayne county and others arguments not to exceed fifteen minutes per side miss gordon for the appellant morning  lawyer starting out in judge quiz could not have been more gracious to a young startup female lawyer so good to see your honor members of the bench my case involves my plane of jane to all of us who was absolutely clearly fired by wayne county and robert for cano because he refused to do political work for the county executives political machine on government time robert pecan i was an elected official has been a county executive since zero two this past august to members of the panel he was defeated in the democratic primary kind of a shocker but not based on his history he ran an operation that has led to huge scandals covered coverage in the media five of his direct appointees are either in prison or going to really really relate to this particular does and i'm going to tell you why judge bogs this was the atmosphere in my client worked in and this is what he was facing and i need to let you know the culture because my client was not a political operative he was an appointee he was a graphic designer with a young family making fifty thousand dollars a year but here he was your honor on the thirty first talk to me about why he would say at this point that somebody else would have been fired instead of him or do you make the assertion that all fifteen were though the nonpolitical people they were all fired for that reason yes i didn't quite get that from the brief so all right well as one hundred because the opposite argument obviously is they're politicians and they were overstaffed they wanted to cut down the staff they fired a number of  people fired them and you might also talk you know why you didn't sue showing a little well up to let me start with that last question is a very good one i didn't know until i got into discovery the chang supposedly was the person that fired them i don't necessarily believe he was that's not our theory of the case and i could amend the two but i let me just start out if you don't mind judge box and go back to tell you my claims are a little bit they the way they've been packaged by th defendant make them a little bit confusing so i have a first amendment claim on free speech retaliation and i also have a whistleblower protection act claim robert for cano had the robber for cano pat roberts for kind of committee and the robber for cano hope foundation that's the five hundred one c three that's a civic organization now with regard to my first amendment claim we alleged that james w being forced to work on the five a one c three which we say is a political operation was a violation of the law and we also say that him being forced to do political work on county time is a violation of the law but for purposes the first amendment argument because the right must be clearly established we decided judge boggs to drop out the five a one c three part of the argument i hope that makes sense because the defendant's going to get up here and tell you with a straight face look this is all about whether james wallace had worked for the five a one c three it's not about political work that was never an issue how silly is that they want you to believe that the five  one c three the county executive is not political activity but i'm going to go with it for purposes of the first amendment argument let's carve that out of the first amendment but when it comes to the whistleblower protection act claim members of the panel both  subsumed back into the whistleblowers argument because under whistleblowers i don't have to show any clearly established right i have to show that my client had a good faith belief that the law was being violated when i asked mr shank at deposition is working for robert for condos five hundred one c three which plasters his name all over town a violation of the law if you're doing that on company time he said i don't know in the meantime of course they've changed the policy in it made it prohibited to work on the chief executives five hundred one c three my point to you is defendant is completely splitting hairs and it's absurd my clients the pressure he was under was to work politically and to work on the five hundred one c three but purposes of the first amendment i'm going to adopt the defend blowing the whistle blowing act itself for your client was griping about doing this work did he internal complaining he didn't really report ok so here's the way it works judge cook when you work for the government if you complain internally that's reporting under michigan law that's that you're confirming for me absolutely there's in fact i have no choice just to let you know i originally also filed this is what's called a public policy tort which is that you don't report outside you just complain internally but we had to drop it because the whistleblowers act pre amps if you work for the government in a public policy surely does so that's why i am in on a whistleblowers because my client work for the government if you complain internally the griping is the act there is no formal reporting that's correct and there was formal reporting and i'll get into that in effect the district court judge did find quite clearly that my client gauged protected activity he  page i believe it's four of his opinion he i'm sorry page ten eleven his opinion he lists six on his own very distinct things that my client had to go through says a various times in tw he said it was inappropriate to do work on county time he said that he would not work on material that was the logo paid for robert for kind of p c was put on he was continually yelled at there were several meetings with his bosses where he actually the rubber met the road and he met with them worry about you time it's ok good point and the ok i want to confirm what the district court said whether or not you ever raise the paw theory because we did and if you look at our especially in particular we use the words cat's paw in our motion for reconsideration well that's ok well that's after judgement yes but we argued the exact same thing we argued the catspaw theory but here's what i really need to get to you all with and this is the crux of my case the district court judge found i did not show a causal connection because he says matthew shank is the sole decision maker matthew shank is robert for condoms number two he's the chief of staff he knew two ways first he was directly involved in twenty ten i'm going to read briefly from his deposition on page forty two lynn ingram my client boss came to him and indicated there was work i'm reading from him that james would not perform because he said it was political and they thought it was related to nonprofit so it was not political based on that i had a conversation with the personnel director minder standing in is that mr taylor met with james james and lynn and they had this heated meeting members of the piano and then at that meeting afterward tim taylor the head of personnel looped back with mr shank to say here's what we told james the meeting was recorded it's absolutely crystal clear and what's crystal clear is that at that meeting which mr watson is going to get up and tell you was just about nonprofits my client said point blank once we put the robert a few come up a for cano committee on something or even the hope foundation are you saying that's ok because james is doing these graphics and they say to him this stuff and twenty tand firing twenty twelve with a bunch of people that's the part i have some trouble getting over this is the sort of thing where your fact pattern if he was fired the next day or the next week or the day after the election in two thousand and ten a m you know a lot more what would be a much stronger case but because the opposite is can they ever fire him once he's done the stuff in two thousand and ten and they don't like him very much is he amused from being fired when they're firing a bunch of people boggs there is no case out there whatsoever that would support the theory that because you're firing other people you can bring in the guy you want to get at i mean i'm going to go at it but you have but i think that's right if if you have some pretty good evidence that that's what's going on and i do so for example if you start out with people saying we're going to fire your guy and then we fire a levon more just to take  thing was even any kind of a legitimate layoff they've done many layoffs at this county this is the first time it was a just a chat between for cano and shank who want to let some people go there's literally not a document in this record saying we have to let people go and here's how we're going to do it there's nothing that exists shank takes it upon himself to go get a list of all the appointees he checks off some that he things have been complaining judge boggs over the last year or so who testifies shank shank he says complaining he says complaining that was one of his criteria was whether somebody had complained over the last year now what is shank do and this is completely contrary to what the district court judge found he ignored this shank goes to my client's boss lynn ingram he talks to lynn ingram and he asks about james judge boggs lynn ingram is the one who was at the cano shank ingram for corey another one of my defendants and they sit down and they discuss who they're going to let go three of the people in that meeting know clearly that james has complained about doing illegal activity this isn't ministration that wanted him gone and with regard to your point about timing and temporal proximity two weeks earlier james had been told at a meeting by brook blackwell kano's p r director you fact we feel judge freeman should a base that dismissal not only on causation but on several other grounds let me first talk about the whistleblowers protection act plaintiffs did not establish causation in order to establish that he has to do more than identify that some individuals knew that he'd had a dispute about activities that he was asked to do it work there must i mean what you just that is just the same as causation i don't think being fired is causes an adverse action it's an adverse action it satisfies the third requirement but he has to show the causal link and to show that caus there's got to be some kind of evidence that these folks retaliated against him do you not agree that we heard some evidence here just before you got up no i don't agree that there was that's what you should address i don't agree there was any evidence of retaliation there were five individual defendants three of them had nothing whatsoever to do with the terminations then for kurri downing consulted said they had nothing to do with determination and that's undisputed in this record the fourth was ingram who was downey's boss downey was the plaintiff's boss ingram was downey's boss what ingram testified in his deposition is that he couldn't remember giving any input to the decision maker mr shank now mr shank says well i talked to the department heads and i think i talked to ingram but ingram's position was that all this people should be kept and that all included mr wollaston so ingram's overwriting position was that all his people should be retained none should be terminated shank however question ingram he said well look this guy does graphics and photography can't we hire someone on an independent contractor basis to do graphics can't we hire a student to do photography ingram had to admit yes we could do that ingram was there the undisputed testimony is that he was there there was some kind of communications crisis and had early before they even got to mr wallace is a name and in fact the folks at the meeting couldn't recall mr while it's being discussed there were thirty folks on the list it was a forty five minute meeting and not everyone was discussing and mr wallace wasn't high on the totem pole at the county the rio evidence of reduction in force he told shank to handle it the guy who had handled it was no longer with the county that was mr taylor shank put together a list of thirty individuals there was a meeting preliminary meeting that judge bugs just mentioned where these thirty individuals were supposedly discussed out of that meeting shank got directions talked to more people pared down this list somewhat pared it down took said ok as it is kind of went at no one took the list didn't subtract anyone from the list as far as we know didn't even mention mr shane well that's not enough to show for  deposition and it was discussed in the judge's opinion the judge noted that shanks lank thirty names and then he quotes from the deposition shank's deposition based on either complaints i heard about them over the years to ask a question if they were improved or not if it was in an area where i thought it was less significant i read that it's a page five so that it's not that they were are not doing politics it could be a complaint also any time but it's not specific to that direct and i'll ask your adversary as well if that's the praise that she's had referring to ok go ahead and then in regard to mr shank retaliation the key involves this meeting that took place actually in february two thousand and eleven what happened is that there was a dispute between downey and the plaintiff mr wow this over what was really political work and downey's position was look while this you're being told to do this nonprofit charitable work on the job and it's perfectly permissible that you could do that on county time good evidence though mr watson of the complaining the undercurrent that we're told about by your colleague here about his being a complainer yeah he was there they had to have a meeting to discuss that he was concerning griping about having to work on that that's true he was griping about this work and what happened was they had a meeting wasn't that the work was hard it was that it was political he said it was political table or had a meeting with all of them with while this ingram downey and taylor the h r director mr wallis surreptitiously tape that meeting so we know exactly what happened the results are telling what happened is four times at that meeting mr taylor told mr wireless if you have or have any complaint this is february two thousand and eleven you come to me whoever pressuring you to do this if it's political work we'll get in trouble you won't get into trouble not one time did he come to taylor after that not one time did he complain after this february two thousand and eleven and two occasions he was asked is there anything else you want to head now at one time did he add anything and further there was nothing political discussed at the meeting it was all about nonprofit charitable civic stuff he didn't bring up anything political and then he made a telling it mission he said we have the downy about whether this five hundred one c three should be considered political i mean that's a regulatory or legal dispute between the people right that was an issue it's our position that in regard to that with a five a one c three by law they cannot do political work i know that about five hundred one c three so other laws earth broken if your side is right then that's correct of his maybe they were spending a lot of our position is that as a matter of law he could do he could be asked to do and forced to do required to do charitable civic work on county time that wasn't a violation of any law in county policy or anything else he admitted at that meeting that downey did not cross the line i forget the exact quote but he use words downey and then did not cross the line so he basically admitted that the county's position was correct in that his was and that after that meeting no further complaints we don't think there was any causation we don't think he ever reported a violation now there was the griping or the complaining between he and his supervisor under the county's policy if you want report you were supposed to go to the inspector general the head of h r or the ethics commission there was one other he admits he what none of those entities he just complain with the supervisor they had a dispute about it we have noted they met of michigan lawyer your adversary said i think correctly that an internal complaint can be a whistleblower activity do you have any law about even your supervisor is a complainer blower activity or that it needs to be through some approved channel other than just a fuss with your probate judges clerk had an argument with the judge about the judge appointing certain attorneys to certain positions and later on the clerk says you don't have authority to do that she didn't report it to anyone but there was a dispute with the judge she has fired later on she feelings of what brings the whistleblowers action the michigan court of appeals in this unreported mortimer decision decides you didn't report that was not a report and i think that was what was going on here thank you we also feel that mr while listen mitt it numerous times that he didn't make a report he got the policy acknowledged getting the policy there was an annual letter that when out letter of understanding that goes out the county employees that letter of understanding really had reiterate political activity prowess you can't work on campaigns or you can't work on partisan politics during county hours this annual letter sent to the employees mr while this received the letter he signed it and through signing he admits he certified certified that he didn't violate the policy himself and that if there were any unreported violations  well let me say that again through the signature he sort of that he didn't violate and he was not aware of any unreported violations he signed that every time it was given to him when i asked him in  deposition why did you sign this letter if you're saying you were being pressured yourself to do political work on county time he said well i was afraid of being retaliated against as a matter of law the first amendment retaliation provisions and the whistleblower protection act provisions protect those employees who report who stand up and report wrongdoing it doesn't report protect those who are too afraid to report and that's what he said time and again and is that position he was too afraid to report now in the plaintiff's brief we're attacked because we say he didn't report and they say oh that's ridiculous he reported the political activity and we did draw the sting sion but distinction between political and nonprofit in his deposition several times he said i was pressured to do political work on the job when i deposed him and ask him what political work are you talking about after him down hard and danced around it always got back to non profit county exact the court said it was underfunded there was a full page ad that while it's helped prepare and the condo paid for and put is local on it the fact that cano would pay for these and out of his political pac money does not turn that endeavor into political activity it was counting activity it might have been nonprofit activity it was not political activity and the law bars the political activity as to the first amendment claim we rely on the same basis the lack of causation really he didn't establish he for to subpoenaed and protected activity and we also rely on qualified immunity i'll stand in my brief on all those in closing i would just like to say that both the whistleblower protection act in the first amendment retaliation provisions are geared to protect employees who stand up and report file ations of law and they're  never mentioned by judge friedman our response it wasn't preserved because it wasn't brought up prior to his granting the motion for summary judgment in any way with cat's paw that's a situation where someone has a  complaint and voices that to the decision maker and it influences the decision makers decision in this case shane put together the list himself before any ms gordon i have three quick questions and you can we them into your response to questions or before her time starts number one when you said that shrink had a list of people who were complaining are you referring to the same thing on page five of the quoted page five of the judge's opinion second question is who's the cat in the cat's paw is it in groom or is it downey or is it something else and the third question is do we have to decide the question of whether the five zero ones see three work is political you know order to resolve this case so you can work those in with whatever else you have no you do not have to decide about that the five  one c three is political on the whistleblower protection act all i have to show is that my client had a good faith belief i think we can all agree that's a good faith question shank couldn't say it was not he agreed who is the cat's paw the cat's  ingram ingram and shank but it's not really cat's paw members of the panel and that's why i don't want you to focus too much on this ingram was at the terminations meeting cat's paw is when you rely on somebody who's behind the scenes engram was at the term a nation meeting shanked talk to engram directly my client talk to shank directly my client like chink know directly he was horrified that's when shank sent said this might be a disciplinary matter because you might be refusing to work and he sent him to h r potentially to be disarmed when you called when you said he was at the meat do you mean the term with the terminations has the quote first meeting with  yes so it's really not cats part of the extent that engram ingram was at the h r meeting with shanks set up shane new new new my client was complaining about doing political activity uncontested they want to say oh he was really complaining about five or one c three here's how they're wrong they want to say he was complaining about five one c three if you read the transcript of the meeting my client goes right in and says i don't want to be doing these things and they say oh that's about the complaints i'm going to read point blank how the complaints were a factor this is the answer from shank based on the other complaints i have heard about them over the years shank page one forty seven that's complaints about people as opposed to i knew that they were complaining but any room had complaints about my client you see judge box ingram had complaints about my client understand that but the yes and the and the tone was that all of these thirty were complaining ers themselves and that's not what the quotations support nobody has ever said james was a complainer about anything other than pl political i mean when the other question for you i don't think we heard why shank is not a defendant he doesn't need to be for the whistleblowers i'm against the county for the whistle blowers you did hear me say earlier that when i filed the case before i took discovery i did not know what the county was going to say his role was and i named ingram and downey and i would like an opportunity to amend if the panel is stuck on that that would be the first amendment only judge cooke that would not be whistleblowers i do not name to name a single individual and it will support the answer thank you very much play place will be submitted clerk may call