morning welcome to the th circuit judge hawkins and i are also happy to welcome judge harpole from the western district of missouri sitting by designation the st case for argument this morning is walker versus ellensburg school district you discharge claim to go to a jury by ignoring strong a substantial circumstantial evidence of deviation from policies proximity in time and in consistency that are on the record your client did not have a contract for a period of time correct he had a year to year contract year out or exactly and the employment decision that was made was his employee contract was not renewed that is the only and that is the decision  was made however the issue i'm not talking about whether justified or not that's what happened he was informed that his contract was not renewed is that right that is correct your honor what's your best evidence that that decision by the school district is tied to his actions and activities and statements about the budget the so that the district is very concerned about the budget we know this because i'm looking for a list january th seventeen email from curtis bolt to the board saying that the special ed budget needs to be cost contained january th two thousand and seventeen the board discusses the special and education budget january th two thousand and seventeen curtis bill one of the board members goes to the den superintendent paul ferris saying i want farley my client to knock this effing assed stuff off then the board even though it's not supposed to starts to tell the then superintendent mr ferris to evaluate mr walker's performance even though the board testifies that that is not his job so that's a deviation from the policies then there's another policy that was deviated from that's policy five to eighty dollars p which says for classified employees like mr walker they need to be given pre term anation notice and an opportunity be to be heard the person that the policy says who needs to communicate the notice is the administrator so in this case that would be michael nolan the superintendent that the the board brought in so the special education is incredibly important and then there's the proximity in time issue michael know when he comes in as a superintendent on february  and seventeen there is a meeting at that meeting he mr nolan says mr walker is still here five days later april th two thousand and seventeen mr walker again raises the issue of special ed budget non compliance in the seguin is important to the that the district because the state auditor's office is coming in to audit the budget so there is fear that mr walker's continued whistleblowing reporting of government mismanagement could put those funds  special ed education program and budget so tell me i'm struggling with how is that whistle blowing he is a c m for the school district his job is to report on financial conditions he reports on financial conditions to the people who he's supposed to report discrimination when did he report a violation of law to anybody he continued to raise that with the board and the board that what is that i think that's what we're trying to figure out that would be the continued to rage that ok that is two parts your honor st off the district did not its i e p's individual education plan for not in compliance with the regulations that in turn affected the district special education budget and going back to the e mail from mr ball on january th and it is he or two hundred and forty five dollars the district recognizes by itself that the special education budget needs to be cost whether the budget is matching up with the programs like i eat peas there was some blowing escapes me here so help me out on that if you look at the at the so go to the elements or  whistleblower claim the st is a clear public policy and in support of whistleblowing the state has announced the local whistleblower protection act which mr walker did not bring a claim under because he was fired and that claim does not recover the cover firing but the subs of that claim makes clear that government mismanagement which this is that the board not cost containing a special education budget is a it is something that when you report on a regardless of your position again much like the human resources person who charged with discrimination reporting discrimination there is no case that i'm aware of and that the defense sites not saying that outside of the st amendment context which is where we are with this claim somebody whose job it is to report improprieties can be legally fired for reporting their improprieties in this instance the you know there is no a lot of the contrary again if this is st amendment then you know defense would have a point i lead budget not being cost contained he has he is terminated he's not renewed and i understand that your argument that in fact it was determination but in point of fact his contract was not renewed right but there is case law from the black versus brewer case that the district court relied on that it's just it's a two thousand and eight decision again from the territory of cyteen pan that addressed really the st amendment context  you file a supplemental letter i have not i my plan is to raise it on oral argument we had the same situation yesterday so i'll give you some free advice and that is that the better practice is to put in twenty  j letter because then we can read it in your opposing counsel can read it and then we're not and we're all for we're on the same page at the argument so just for future reference i apologize and if i may i'd be more than happy to submit something after the fact and you're welcome to do that thank your honor do you agree that the interim superintendent had the authority to decide not to renew your client's contract without a board vote i agree  his stated purpose for not renewing was your client's inability to get along with other people on the staff that is the stated reason but that when you stack it up with the consistencies deviation from policy in the proximity time deviation from policy you're talking five dollars to eighty dollars p that is the policy that said if you are classified in ministry to which mr walker was and you're going to get renewed then you have an opportunity to go you get a notice of why you're being terminated and terminated that policy is not defined but a nonrenewable is a terminations just using the black's law dictionary definition but that policy was not filed there's another practice which says that he got to finish his term and he got paid his whole benefits of the st year or so then that just apply if you're not going to let the pay the person his salary or compensation do under the the contract no it doesn't your hon because the property interest of mr walker had was a protection from without cause discharge and then the you know we keep talking about discharge are you suggesting he's entitled to all the provisions for four hundred and three thousand and eighteen that is in the brief and i will point out that the district court cited r c w twenty eight day forty thousand four hundred for the proposition that no property interests exist but that statute twenty eight thousand four hundred no longer exists of the district court was in error for that reason you want to save your remaining i do thank you mr walker bases his claims on is that he reported quote unquote governmental misconduct and from that foundational premise he asks he st asked the district court and now asked this court to make the speculative conclusion that he was quote discharged because of reporting the alleged governmental misconduct there are three primary flaws with that argument st the foundational premise of mr walker's claims it is in fact flawed and it is flawed because as i believe your questions  crotty pointed out he did not report governmental misconduct what he did as the business manager for the school district is do his job in his job was to bring to the school board budgetary issues and if the special education department is not cost contained that's a budgetary issue which as council admitted it was  concern to the board the board has to know what the financial situation of the district is and that includes the special education department the nd reason and i think i understand his argument is all of that is true but because he brought for something even if he was obligated to do it as part of his job he was retaliated for you know basically opening the box on that issue sure st of all i wouldn't characterize it is opening the box because it is something that you know everyone was aware of as a matter of fact i believe there was reference to an email from board member curtis boll pointing out that our special education budget is not cost contained in and needs to get cost contained but more directly to your point your hon r yes that's his point the problem is there's no evidence that the decision to nine renew was based upon any discriminatory animists the timing's a little suspicious  because the reports that he's been making if we're going to try to talk about the proximity between the reports in the decision not to renew reports been going on for some period of time it is not something that mr nolan became the interim superintendent then there was some report that was made and then the decision to not renew was made instead of the reports have been being made for a long period of time the record establishes that because the special education budget had not been cost contained for some period of time the timing i think your honor is more related to simply when mr nolan was appointed as the is the interim superintendent and this is a situation where as the superintendent he has the right to formulate his cabinet that he'll be working with with persons that he believes he can work with and he was very clear in his testimony  mr nolan's testimony that the sole basis for his decision was his perception that mr walker did not for lack of a better term play in the sandbox well with others he was very good mr walker was very good at what he did financially in working with numbers and working with the budget but the straight comments that you're always in council mention this expletive laden and description of the point of scandal sure i think there was definite frustration by the board they've testified to that not regarding the fact that mr walker was bringing up the the fact the special education part of a budget was out of compliance or was not pos contained but it was the manner in which he was presenting it and what the record establishes is that the board wanted it simplified he would come into the board meetings and make very long presentations there quite frankly did not make a lot of sense to the board the board couldn't follow what was being said and in addition to that mr walker would continue to put the special education budget in red ink which the board for whatever reason did not want in the board asked him not to continue putting the the budget when you turn in the written budget in red ink and mr walker continued to do that and he did frustrate the board but i think it's a proper place to point out your honor that for purposes a summary judgment i told the district court will tell you this you can assume that the board was frustrated with mr walker in if you believe that there was  material facts suggesting that the board had discriminatory animus that doesn't save the case from dismissal because it is undisputed in this case that the decision not to renew mr walker's contract was made by mike nolan and solely by mike no one so in order to get from there being a question of fact about the board having discriminatory and animists and that resulting in a denial of the summary judgment there had to be evidence suggesting that the board somehow influenced mr nolan and i do think it's important or proper to look at kind of the shifting sands that we've faced in this case as it relates to that issue because the original summary judgment was very simple and very straightforward and it was premised upon the argument mr no made the decision you have no evidence that mr nolan had discriminatory animists against mr walker the response we got back was based soley upon a catspaw theory there was an argument that the board had animists but there was never the argument placed before the district court that mr nolan had discriminatory animus and i think the real reason for that is simple and that is there wasn't simply incorrect what washington law could not be more clear in interpret in that statute that school district employees employment is limited to a one year period that's how i read it i mean that's gives them that chance basically without layoff status to hire everybody back or not hire everybody back correct that is correct what the intention of the statute is correct and then the courts have interpreted that classified staff can only be discharged during the term of that employment for cause but their need not because at the end of the one year determination of employees and gives the employees who are terminated as opposed to non renewed the procedural rights of notice an opportunity to be heard but if you apply that policy as counsel has suggested to non renewals then that would be contrary to all washington law which says that non renewals don't have to be based upon any cause and by operation of law the employment simply expired i assume you disagree that he somehow is entitled to all these loud or male protections and hearing yes i do disagree with that and i think i think that if that was imposed it would overturn the statute the statute itself in the washington line terp reading the statute i have thirteen seconds so i just want to wrap up your honour's by saying that summary judgment was appropriate i asked the court to affirm the summary judgment one issue that was not decided below but if there's any question in this court's mind about the conduct of mr nolan or mr or any of the board members they are entitled to qualified immunity and specifically based i would suggest on the fact that the actions were taken  with advice of counsel thank you thank you a relates to the breach of promise claim whether mr walker was doing something within or without his within the scope of his job it doesn't apply again the policy is clear it discuss species of determination as a relates to mr nolan's lidge supposed legitimate nondiscriminatory reason to get rid of him mr holmes that mr walker was not a good fit but if you look at the terminations letter determination letter discusses reorganization in the business office which is different from being not a good fit for the culture and a subjective reason like that in and of itself it's also and i'll quote from a the non taper says virgos case has been over over other grounds but not in not for this proposition but such subjective gripe job criteria provides a convenient pretext for discriminatory discriminatory practices and may be easily asserted as the reason for an adverse employment decision when in fact the reason was discriminatory or retaliatory also as a relates to the non renewing mr walker and then paying him for his remaining three months on his contract we understand that argument but at the same time during the course of his contract mr walker under both the policy and the r c w had the right to go before the board you notified of the reasons why they were getting him rid of him and to state his case and that did not happen in this instance so in essence what the district is saying that's that they can  basically tell somebody to not show up for work for a couple months pay them off and avoid their obligations under the due process clause of the constitution which with lies here it's almost there any other questions i thank you for your time thank you the place just argued walker v ellensburg is submitted thank you both for coming over from spokane this morning