the morning your honor please the court my name is eric a dub now a fairing or end up now and i represent the appellant theodore smith we are here today because an extraordinary educator has been permanently barred and terminated based in retaliation for speeches that he made in an effort to protect the students in the public in public schools in new york it's important to recognize that we're here on a motion to dismiss under rule twelve b six and such a motion the plaintiffs complaint has to be reviewed with all inferences drawn in favor of the plaintiff and we can we get to the collateral estoppel issue in this case certainly i  welcome that your honor you have the district court and smith one granting summary judgment for the defendants concluding at the findings section thirty twenty eight hearings that  either part of education had just cause for taking adverse employment actions against smith and the actions were not based i'm retaliation so why isn't why are identity and dentical issues there that retaliation claim that was raised in smith one was based upon his age being over forty years old it was based upon his medical a situation it was not based upon the first amendment claims that were made and therefore collateral estoppel would not apply because there's no identity of issues there indeed but didn't his first amendment claims arising are about the same time as the or lose some of them my understanding was it was his belief that he was unable to raise it at the time his belief doesn't do it the question is for you under new york law or under our law i mean because we're talking  proceedings were still going on in front of the the thirty twenty proceedings in the state proceedings were still going on but ultimately the thirty twenty proceed finished and then the district court gave her coos of effect to that to dismiss the b at this point the claims relating to his retaliation for his first amendment relating to his terminations that could not have been raised in smith one because his terminations he did not learn of his terminations until after the smith one complaint was filed and therefore the judge buckwild said that the race judicata determination does not bar any claims that arose prior to  of this second amended complaint your honor that was the issue that was been raised which is a statute of limitations claim a statute of limitations claim is strictly construed at this stage initial stage of the proceeding you have to look at the complaint and here he was terminated and i believe act i apologize the merits of that but in any event his complaint is what twenty fourteen not his character and actually he says that he did know that he had a complaint until after he got the notice of the terminations but he actually commenced his action before he got the no terminations right that is correct your honor but seems like a curious position to me were in a situation where he didn't learn that determination on of people but my understanding is a lot of people are terminated but that doesn't mean they're placed on the no higher less right to z have to be rehired what civil right does he have to be how is he discriminated against he's not hired just like a lot of other people are if you don't want to he has a right to work your honor he had a license that was taken away from him usually he does not have a right to work for the cities of of new york for the school districts of new york he does not have a civil right to work there if they terminated him and his claim for terminations no longer timely his claim you would agree with me that his claim for germination was right at the time of his terminations would you agree with me on that that is correct or so then you say well he had something else happened after that and that should be he should have a claim for that right he was left with the impression that he could always reapply for employment he was told time and time again by the t r s which is the teachers retirement system which was under the aegis of the dio at the department of edge to this is not the agent of the city of new york in the two thousand and seven decision of the special commissioner of is not necessarily a full term a nation which would bar him from ever working again anywhere in the district it's a big difference between the no hire which is a permanent bar which prevents him from ever working again then and then you're put on a no hire lawyers in this situation we believe that there was a direct causal connection between the terminations the retaliatory terminations and the ultimate placing on the no harless it was at all flow directly from the initial retaliation and what's important to note is that he was retaliated against for expressing speech it was done not just through internal channels through the d o a this was well beyond he contacted the mayor's office this is something that any civilian could have done there's clearly a civilian analogue any parent or teacher any parent or student who is concerned about overcrowding could contact the mayor it's important to note that judge buchwald completely ignored that in her decision she had dented by the fact that he filed internal complaints but never addressed the fact that he complained to the mayor and i think when you're dealing with somebody who has expressed a concern about something so important and dangerous is overcrowding in is now collateral stoppel now and can't be revisited and the only sort argument that that i heard to try to get out of that was that the difference between your bringing agent and disability discrimination claims in smith one and now they're bringing first amendment claims but that the relevant issue that we and we put this forth in our brief is that any type of retaliation claim in this context requires a causal connection between the protected activity an adverse employment action and that's exactly what was found in smith one to be precluded by the collateral stoppel effect of the third first thirty twenty eight hearing so there's no valid distinction now to just say ok now i'm taking the same factual predicate and calling i retaliation whose claim had already occurred he was claiming that he received disciplinary letters he'd received to you reading he'd been served with disciplinary charges the first thirty twenty a hearing had concluded and he had been suspended for one year  that he expressed cern's referring to violations first minute rights but decided not to bring it so clearly it was aware of the possibility of bringing it at the time just the three twenty eight is not is not is are the keys to being able to dismiss them is ten years right believe that's the case or i mean i think certainly i don't i don't know they could have done the suspension without hearing i mean they were there were other there was other conduct only what was the relief sought in the three twenty eight here the relief school dis t they seek to terminate him as a result of that i don't believe they did in the first one they did right so all right so not positive but it's one and and the litigation is smith one was about thirty twenty eight process no litigation smith one was he brought a variety of things he basically alleged that when he complained about his class size he complained about class size because of its effect on his health and he brought discrimination can listen thirty twenty a process completed the first hearing the decision was rendered it was late initially it was initially stayed pending the resolution in the end of the three twenty hearing and smith one was decided in the federal court when two thousand and eleven ok so after the thirty twenty a complete had been completed the first we actually after both of them and we both have been completed had he been terminated by the time smith one was completed but i was completed yes because he was terminated two thousand and ten he was terminated in june of two thousand need any time even commenced the additional reason national discrimination complaints that you're not precluded from raising them later claim just because you want started you want your first last so there's a line of authority that says that is germination claim is not precluded the district court dealt with that and in the decision below they said that the that the operative complaint was one that was it was it was a bit of a tricky situation because i guess they were given leave to file and it wasn't followed correctly but i think the court weeded out very clearly what happened there and judge the operative complaint is a june second two thousand and ten complaint so the court was very careful and said you know what i can't say for certain that and as of june second two thousand and ten he was aware of his terminations the arbitrator's decision church recommending terminations was to the mayor and to the chancellor constitutes a speech by by a citizen on a matter of public concern i think when you look at the power entire paragraph of complaint where that comes up in context it's clear that it's not plausible that he's plane of logic several complaints with the union and then they continued the campaign of retaliation the inference i think the only fair inference from that is that he was complaining about his treatment of him was not complaining is not bringing a broad safety concern to the mayor he was complaining about a specific instance he was actually completely out of context of how he was being treated which is what differentiates it from the matthews case that is cited in all of our briefs where there you had a police officer can stop complaining first of all not just about a specific incident that he dealt with for example the analog would be you know here smith mr smith was complaining about his classroom business a policeman was complaining about you know what he had to do in one or two particular instances the policeman was not doing on matthew's complete complaining policy a complete policy of the police department that was undeniably you know a matter of public concern in this case you have a teacher complaining about the conditions of his classroom we complain about the first time smith want to complain about it not on the grounds that student safety was being jeopardized on the grounds it was hurting his health and he wasn't being accommodated and that's why he brought discrimination claims so i think that's what takes it outside the realm of matthews and makes thank you your honor but first i just like to point out that with the city's doing is parsing the complaint and saying well you know it's got to mean x and it's going to mean why i think you have to recognize that on the twelfth  the six motion all inferences have to be drawn in favor of the plaintiff number two the letter to the mayor is not in the record and certainly to be speculating about it's what it says i think certainly we could have a  introduce it into the record and see what it actually says without speculating and dismissing someone's complaint based on that pure speculation relating to retaliatory motive i believe judge leslie was talking about the reid versus lawrence case which says that a retaliatory motive can play a part in a discharge even if it may not be the only basis for the discharge and we certainly rely on that authority relating to the claim  that mr smith you know raised this issue or thought about raising the first amendment issue during smith one and didn't i believe what the document actually says the brief says that he raised it to his attorney david carney and carney said not to raise it carney's the same person who claimed that there was a threat and put in a ninety eight page ex parte affidavit is no longer practicing law and is no were available to be cross examined so you know the fact that the claim was that it was made to carney and then carney didn't raise that certainly demonstrates the prejudice to mr smith and finally while it is true that judge wants to arbitrator one stocks decision came down on june first and the complaint in this case was filed on june second the parties didn't learn about the decision from judge weinstock until after the complaint was filed thank you aaron or thank you thank you both for your your