judgment of the district court granting the defendant's motion for summary judgment and uphold that mr mayhew engaged in constitutionally protected speech activity in this case at least that part of his speech was constitutionally protected if not all of it mr make you work for the wastewater treatment plant at the town of smyrna for nearly nineteen years it's undisputed that he was an excellent employee he had no prior disciplinary action write ups or anything of that nature before july of two thousand and fourteen your interest mr mayhew engaged in constitutionally protected speech activity on three occasions approximately the first time was in mid june two thousand and fourteen when he reported to the utilities directors who were outside of the plant they did not work at the wastewater treatment plant the head person on the ground at the wastewater treatment plant was the plant manager mr may he went outside of the plant to mr strange and mr parker the utilities directors who had responsibility over multiple departments and in the context of special investigations that they were conducting at the plant interviews that they were conducting about various employee problems at the plant mr may he reported that leland noble another remember floyd plant had pressured him to change numbers or alter data on the watering reports and other reports that the plant had to submit to the tennessee depart department of the not to change the reports or change the figures and i mean that's part of his duty of st port them accurately you're already e s it it was part of duty to report those things to accurately to t to into the e p a but what was not part of his duties was going on reporting the fact that noble was pressuring him to these extorting sorting misconducts of fellow employees is not part of the scope of your employment you are that the apple lisa rely on his job description is like the job that's not in there  and ok answer my question even i mean a job description will try to list as many things as they can think of but i would think reporting misconduct of fellow employees is part of your the scope of your employ and i would i would assume that as i would expect my employees to report misconduct of fellow employees even if i don't have that in their job description yes or your honor if he did have a duty to report to the plant manager to what you're saying he reported too high is still reporting with in the tunnel the town hierarchy maybe skips a step or two but he never gets out of  the the officials of the tower that he works for he did have a chance to but i never did that and that's that's the main problem i have with with your case is that all the complaints were in with in the and whether it it's two things up the chain of command or one thing at the chain of command he never gets out of them and is a pallet with his complaints of anything and most of these cases that we see  first amendment protected cases they get out of the government agency and report it to other people news media or or somebody else but but here there isn't anything take a look at it i wouldn't think that that would apply but look at it i think that's a very narrow reading of the supreme court opinions that if you go out of written job descriptions here's your job description there's ten things but there's something else such as reporting misconduct of a of a fellow employee well that's not in the job description therefore it's protected speech it's not within the scope of your employment i don't to take it beyond him not to report it to the town attorney jeff ph who mr may he wanted to report it and not to report it to gil so to the e p a or the tennessee e p a i mean those are the more classic cases that i protect speech not internal reporting that's all but i got interrupted you you know you've got three three examples or three examples of protected speech the first one is a report to the attorney the utility director as to mr noble's attempts to falsify the samples and the other two are what the july of one two thousand and fourteen e mail that mr  a sunday outside of work and then that one to who he sent it to mike strange and mark parker the utilities director in the system utilities director and requested it in the mail that it be forwarded to the h r manager jeff c and then in the july seventh two thousand and fourteen meeting outside of the plant at city hall with a number of individuals that work out of the chain of command including the town attorney i think that's the most exciting if i can jeff peach the human resources director jeff koenig and then mr gill the town manager and mr strange the utilities director so with five of them in this meeting and they go over all of mayhew's concerns that he had reported to strange and parker previously in the special investigations and previously in the july one e mail and in that e mail you have in addition to the reports of violations by mr noble in pressuring him to change numbers you have him speaking about violations of town hiring policy  practice and the appointment of unqualified individuals in the two highest positions at the plant safety sensitive positions judge gilman was on the panel in the banks versus wolf county case that we rely heavily on in our briefs talking about mixed speech and you have to look at it you have to look at the words the plaintiff used in this case in mr mayhew's e mail and in that july seventh meeting look at the words they use not not his intent or his motivation the district court focused on  employee point related matters and he's complaining to towel officials about employment matters whether it's the hiring practices or or  said is if it's outside of the ordinary scope of the employee's duties and the district court in this case found that mr mayhew's reports about the hiring policy violations and the appointment of unqualified individuals was as a citizen and but then the court the violations of the hiring policy mr may he's protesting of them and said that he got fired for it reporting the legal activity that of noble and speaking out on matters of public concern this this stuff that was held to be matters of public charge was part of the your first i'm violation of your client's first amendment rights it does your honor it is the complaint there's a conclusion reason it's at the bottom of all these allegations that says that he engaged in constitutionally protected speech active dean was fired for doing so and there's a case i'd like to cite your honor is to say that his deposition too because i thought he was asked in his deposition several times that what do you claim caused the tower to fire and i don't think he said the complain about the hiring process i can read his deposition again but i think about three times he said no it was you know the complaint was regarding noble and he was asked specifically that would tell us what caused the fire he focused my rock on that or not both activities and more importantly on causation yes and more importantly are are the defendants concede that they fired him because of what he said in that in the july i want e mail in the july seventh meeting so mr may he's not really the one in a position to know why they fired him they're the ones they're in the position of stating the cause of action and his complaint and that's kind of what we go back to and he has to say that i gauged and protect speech and the towel i was my protected speech by firing me because of it and  so i mean you have to you have to allege in the complaint and then you also have to back it up with facts in the in the record and i'm trying to find where he was civically ask because of you are right may i mention one case to your honor's that goes to this complaint issue there is it's why song versus dow company five o three f third four forty one at page four forty six it was a familiar case where the defendant tried to say the plaintiff didn't plead both interference and retaliation theories in the court said no if the notice pleading the claim is violation b f m l a that's all you have to say here the claim is the defendant violated mr mayhew section one thousand and three first amendment rights to speak on matters of public concern and in all the depositions and everything in this case we went through exhaustively all this stuff about ok you post all these positions before this time you didn't post them at all you don't let anybody interview the fact that other people were interviewed in interest in these jobs both inside the plant and outside the plant and you not let anybody apply like every other time that has ever been done in the history of the town of smyrna so he's speaking out about these  you read the july one e mail those are matters in which the public would be interested and qualified job applicants for these two positions these two highest positions at the plant would certainly be interested in hill's conduct in bypassing all of this involved when his nephew and another person who had all kinds or write ups and had engaged in misconduct had been complained about by numerous employees and just summarily i'm pointing these people to these positions are this has been a part of the case the whole time it was in all the written discovery a telephone conference call with the court and we made them produce their job postings that stuff is only related to this claim about the appointment of people to the positions not about the illegal activity of noble and so under banks this is at least a mix and if you read the july one e mail for which mr mayhew got fired part of that touched on matters of public concern that the community would be interested in case is that there was no evidence of misconduct that was ever actually produced for fran and by mr noble now again i recognize and acknowledge misconduct in which  on the illegal or the altering of the data that that's what i'm referring to and also to back up a little bit with the focus mr jamie mentioned and tried to put the focus of this case on and a to the court that the first complaint was made in june of two thousand and fourteen at what he characterized as a special investigation when in fact your honour's the records undisputed that mr mr ma first went to mr roberts the former plant supervisor to bring this to his attention in march of two thousand and fourteen and roberts of course is the man at that has to sign those reports that go to t dechen go to the e p a and he looked into it and  deposition that i took of him i asked him what he did what he found and he said that he investigated it he looked at the data he got on to the computer he looked at these logs where the district court found that the only evidence of any altering of the numbers was this discrepancy and mr roberts testified that he couldn't find anything he specifically said that i'm wondering if that's the graumann of the case because there's no question that noble had  with his own management in his own neck to bodies so talk to me more about i would like to hear more about this nepotism and promotion klein ok well judge i gaulish that that is not the of the case but again i think that it is it is helpful and is beneficial because what this case reduced down to its core i think clearly is the classic employee beef the classic workplace disagreement between two men that had worked together for a very long period of time and probably should not have the admittedly because the personality disagreements and painful questions that we are talking about understandable and fair  statement about her what might be going on but the real question here is the conduct of gil right and and whether that impacted first amendment rights so i think you've got to concede don't you correct me if i'm wrong that by next pretty clearly says that nepotism and improper promotional activities is a matter of public concern i'm not one hundred percent sure that under the facts of this case that what we have is a claim of nepotism that per se has not been alleged i don't think as you don't think there was an allegation that he moved his he moved all somebody up that they didn't want and placed his own nephew in that position without following any of the normal procedures that i had followed in hiring people i will concede that what mr gill did in terms of the methodology and how the promotions took place was outside what had been done in the past whether that touches on an issue of public concern under the facts of this case i disagree classically as minder saying of this  that i just don't think that there is an up here to move this into an issue of public concern there's no issue there's no allegation of public funds that were misused there was no proof put into the record  think well to begin with in banks it is i recall there was much more in the way of reporting and complaints that were made as a by the plaintiff in banks as compared to what we have in this case it's not quant compliance that governs a breach of the first amendment it's whether there was responsive action based on speech so i think there's a general agreement that the july one e mail was the motivating factor for the july seventh meeting it's certainly what we've got to tell you and that mr gill it's has admitted that he was angry about being accused of an ethical hiring practices or on unethical actions so i think we've got the time they are i think the only question that the court decided that nepotism climb on was a determination that had it had not been playing not that it was not a matter of public concern but that it had not been play it as an alternative i'm just a little a little concerned about the basis of your argument that that he didn't plead it alternatively and rule at eight did he requires that i don't see the hand in the rule i do well your your honor again i guess a question of law or a matter of law for you for this court to decide whether it was played or not obviously you can interpret and review the complaint as well as the docket the scheduling order etc as well as judge trog or can my interpretation is that it was implicit and while the issue of the relationship between the two bills if you will was referred to it was it was not the thrust or a focus or a specifically played allegation if that had been if that had been interpreted as such in my answer i would have included a defense that that undermined trepidation of the law of the circuit is not a matter of public concern now obviously my concern about that ahead is that the evidence in the record is that this was a cline that was actually litigated there's the complaint clearly states it clearly states that there was a violation of normal hiring protocol and in a complaint paragraphs ten to fourteen but my look at the record  i'm a little bit of a loss for the argument because it's in the case management order it's in the summary judgment brief it was a fide in discovery and you were ordered to provide the information regarding that issue and in all six depositions promotions accounted for a large amount of this discovery in mr gilels deposition alone by my count there were sixty pages of testimony taken about promotions the town's policies regarding job postings applications qualifications and interviews the handbook was introduced into the record the code of ethics and i don't understand how under our case law when there is a notice pleading that includes the allegation and then it is litigated through i ought one can klein claim was not right used what is your best for a day in that circumstance for saying that the climate was not right i would why upon your honor what we have in the brief in error in arbor in our brief in respect to the appeal and also the briefs that were filed in relation of the server reply and what was a motion to strike which retrospectively was not the proper vehicle to the fifth circuit and the disregard below where they were police officers who are investigating criminal charges against one of the alderman of the city and in response to that he was for they were fired by the board of aldermen and the question was was it a matter of public concern but the real problem was that the complaint didn't mention section one thousand nine hundred three and so the district court and the court of appeals that i out the window you know not properly  unanimously per curiam and they make statements a couple of them says under the federal rule eight two they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted it says that the federal effectively abolished the restrictive theory of the pleading pleadings doctrine making it clear that is unnecessary to set out a legal theory for the plaintiffs claim for relief so you know this summer here well he didn't he doesn't specifically say in the complaint that these this nepotism is part of my first amendment klein is law because if the complaint talks about the nepotism issue and it's been in this posed and that's that they don't have to state specifically a claim of retaliation i read that to mean that judge progress found that they were not actionable under the first amendment she went on to say that even if the speech is related to mayhew's concerns about his ability to perform job duties rather than a matter of public concern and then she went on to cite two cases one were reverse the city of stove from the six circuit voting for height and then connick versus miers which was  earlier respectfully i would simply submit that the focus of this claim from i think the beginning in the throughout litigation was the focus on what mr noble did or did not do with respect to this information the hiring while it is acknowledged was was not what had been done in the past i still question whether it touches on a public concern it did not violate any federal state regulation it actually didn't violate any internal policy written policy of the city or the town of smyrna and it's undisputed in the record that the town manager had the final authority to hire or fire and he could do that within his discretion and mr gill while there was questioning about this mr gill i think pretty aptly stated that the reason he went about the hiring and promotion decision in the way that he did this one for his nephew mr was not because of the relation the relationship the family relationship but because he was the next logical person to fill the position but it isn't the problem in a first amendment case not whether you think it's a general one have to write that down to the study you want to your honor the bottom line is you can you can speak what you believe to be true and it may in the end not be exact yes and that that is han't be punished for that that has been addressed in prior decisions and so the key here is whether mr gale acted inappropriately based on july one e mail that was the majority of which address nepotism and improper hiring practices and such and his testimony supports a klein that there was a discharge but based on the fact that he was angry about quote he was furious and quote offend the man he was questioning as ethics with respect to whom we are that's right on the record it he did say that but it didn't go with respect to the fact that he hired his nephew his nephew was qualified his nephew had been in the position of chief or lead operator for eight nine or ten years and mr gill i think testified and explained very well that he thought that this was the best decision to make under the circumstances and while the acknowledge that in the past the town had employed these practices under these circumstances in order to kind of quiet down and to get a handle on the controversies that had at the end i want to make this this point mr janey respectfully i think miss characterize why it was that this quote unquote special investigation started i don't know that i would characterize it as that and this was not kicked off because of make use complaints this was kicked off because and the investigation started mr gill told strange in park or in the utility department to go down to the utility erd to go down to the wastewater treatment plant because there was a lot of distention an argument among the employees that was going on and that had been highlighted and brought to to his attention because of mr robert's suspension for having alcohol on the job and sort of it i hate to say as an afterthought but it came out of those interviews that mr mr made you made the comment made the report to mr parker about the alleged illegal activity and number fixing and again i go back to your original march report to mr roberts that's when this started in terms of context and in chain of command did not go outside of town on that i did in regard to the complaints about going through the normal hiring practice which is what we're focusing on mainly for the questions here the district judge ruled it wasn't pled and then he also ruled even if it were pled that it was not a matter of public concern the other element i guess that there wasn't a ruling on is whether the speech by the plaintiff was as a private citizen or as a public employee which i think is probably the spaza tive question  my question is ok the district judge did not rule that but we never last may affirm for the right result but the wrong reason however we only do that if the issue is preserved did you argue below and have your get on appeal that the speech by the plaintiff regarding the hiring practice was not as an employee was not as was dr and citizen but as an employee which i think is a necessary  a heavy argue that yes i believe we have when both district court and on appeal well i'm i'm embarrassed to say that i did not read in preparation or i read in preparation several days ago all of the briefs that have been involved but i believe that that argument is there because the question that i understood was it is she was whether this is a matter of public concern on falling into the case law following the line v finds that that talked about the fact that there could be mixed speech if your argument is that complaining about hiring is all is a part of one's job responsibilities then no employee could ever raise that as a matter of public concern and we have case law that allows an employee to raise that as a matter of public concern so how do you differentiate are kept small well your honor i'm not sure be frank staines for the proposition of mr may he wants it to stand for i didn't read lane to be a case that changed standards for every circuit court in the united states that instead of this being a question overall for a district court to about the very issue of whether an employee might complain about nepotism and improper hiring practices and does and i'm asking you doesn't are buying some decision is stablish that an employee may speak as a private citizen on that issue and not have it treated a as a part of one's job responsibilities it speaks to the issue but i don't think banks is controlling the air because the facts are distinguishable if i recall banks there were numerous communications i think banks involved a report and a claim that funds were being misused in the context of what was being done in that case we don't have any of that here we have a disgruntled employee who if i may say simply got angry because a man that he didn't like despised point honestly had been promoted into a position that he was qualified to get into he had the experience he's done a good job the recovery knowledge agreed well he had three and a half years of college experience and a long period of time of service in the united states be close but no cigar well it you know these these requirements though as i read the job descriptions are not mandatory and again i go back to my toe toe mr mayhew that he couldn't have the job because he didn't have a degree that sounds complaints regarding no were part of the plaintiff's employment and therefore not first amendment protected speech however the plaintiffs complaints regarding the hiring practice is not within the scope of his appointment and therefore it is as a private citizen so we affirm it part in reverse and part  how does that work and remain as all this come out with all this come out at trial anyway because it's part of the scenario of it and the jury would be instructed but you may not consider whether part of the firing was partly caused by this or that i mean how would the how would that work well i think it would be messy if not a nightmare for mr janie and i potentially if we had to go back and try this and that as a possibility that you know one of the claims might survive and the other one doesn't and i mean is it possible to litigate that way if this court orders that and if we if i don't have a basis to challenge that further as we go back to the district court and we look at what's left the plaintiffs say in his deposition that he was fired because of his complaints of the hiring practice i don't recall if that was talked about but i don't recall that i've asked him i think that i did i mean he referred a lot to the e mail that was his default answer ok but the emails got both of them and it does but i think if you look at the way that the e mail was analyzed in the way the district or analyzed it judged order used the point and used the terminology that could the communicated of purpose was focused on noble and the alleged illegal activity and i again i go back to the comment that i made that this is one of these classic cases i think we're opening up the court dabbing to go down the slippery slope you're on to respectfully judge strange that if every time someone complains about a promotion or a hiring decision in the context of this case and i don't agree that this is a matter of public concern then we open the courts to a floodgate of potential litigation that any time someone applies for a position or his buddy gets promoted any doesn't know about it or there are some other extenuating circumstance amendment claim well away if the employee like gets hot well not potential like him complaining about his well i you know happen i judge i can see scenarios though were somebody tries to spin up some type of claim of disparate impact or an adverse action that was taken upon him as a result that that's the nature of for him it is handling the question here is judge gellman says when you have a case where the testimony from the discharging entity is that he i was upset because he believed point it had accused him of nepotism is there then a connection to the expression of a public concern and the firing pretty simple question courts handle that stuff all the time well that they do not respect me i disagree in the one thing that i may suggest since this is come up and there have been many questions to both me and mr janey i would invite if you perceive a need for additional briefing on any of these issues i would be open to that if there are things that need to be clarified i prefer not to honestly i think that this decision honour's i would like to address the issue of whether this claim to defense counsel was referring to the issue about the hiring in the promotions in the nepotism as a claim that is not the claim that is part of the grounds upon which the claim rests the claim is that they violated his first memorised by firing him for sending an email complaining about matters of public concern judge griffin one question that your honor raised was whether he was speaking as a citizen when he did that and the district court correctly found that in complaining about the hiring policy violations and the appointments of unqualified individuals that that was outside of his in scope of his employment and he did so as a citizen well i wasn't quite sure i read that and it was as an employee and he's he's complaining that other employees are improperly getting jobs in front of him within the organization to me that looks like employees speech not private citizens speech because it actually  is e mail is sent to the tone official so is he acting as an employee when he sends an e mail to town officials or is he acting as a private citizen when he sends an e mail to  case last month were somebody is letterhead complained and sent it to the supervisor and he claimed all it might be on my letterhead but i sent that letter head letter as a as a private citizen i said oh it doesn't look like it  and here because you're an intra town e mail to intra how officials to me it looks like it's employees speech not private citizen speech and if it is there is no first amendment protection at you only complain to the plant manager mike roberts or you're saying he complained up above him and therefore because he skips one step what would have been employees speech is no longer employees speech is hard for me to to buy that that's all you want i don't think that's what the supreme court said and said if i may elaborate your honor he didn't just complain one step about he also complained to the town attorney a two or three steps ahead he's still within the organization he's still within the government your argument if it's not it is written job description duties then it is public speech and i don't think that's what supreme court's help if you are please it would take a look at the handy clay versus memphis six circuit reported decision that case says that where the pla goes outside of his or her department to other officials in the town outside of the department here we've got the town attorney present we've got the h r director also make use e mail was immediately forwarded to the mayor and to a city council member and so all these individuals had knowledge of what he was complaining about the next day gill fires him and so i'll take a look at those cases and see if the holdings mind me as i think they are contrary to supreme court precedent but if if we have a holding on that issue if you go out of your chain of command is no longer employed speech look i don't i can tell you i have written those opinions and i have written opinions of kind of gone the other way so i'll take a close look at all the opinions anything and i took up all you read hope rebuttal time but anything else you want to judge one other point is that some of these cases by the six circuit i think judge rogers and a dissenting opinion and maybe the steinbach case over a fire chief had had sort of condemned the employee for running to the mayor or the newspaper before trying to address those papers different than the mayor if you're out of the the organization trying to address internally and so that in this case mr mayhew the day they had this meeting on july the seventh the day they had a meeting with the town attorney the h r director the utilities director and the manager of the town he didn't get a chance to he would have reported further he was fired right then and there the day that he met with these five individuals and so just thinking about that establish you were fired for reporting as a private citizen not as an employee but so and on that he was fired already before you said he would have done it but he's already gone he was fired upon reporting these things these five individuals in your honor it but i want to cite a couple of pages of deals deposition it's page one twenty six one sixty three sixty two that is where mr gill testifies that he fired may here at least in part because of what he said in the july one e mail and what he said in the july seventh meeting  and and you're on the reverse in part or affirm in part that would be acceptable and it would be an avenue we could just go have a trial on the issue of whether the reports of nepotism and complaints about that motivated t