retaliation for being associated with a union and complaining about the martin luther holiday situation for union members do we have an association claim here that really is limited to the issue  of of a membership association in the is not in are right with the speech claimed yes because of the fact that he had filed supported the filing of a grievance only a union member grievance and the defendant admitted that it was the grievance that was the catalyst for the transfer he admitted it to have biloba that that same day that he was transferred on january twenty second two thousand sixteen that it was the grievance that was the issue not related to any speech was the fact that he but you don't have that you have the union related it speech related to a union right that they claim he's here you have speech and not the fact that he's a member of the union that's the crux of the matter but he's put talking up about his rights to have martin luther king day off and so forth so why is this so much about her of union otherwise what you're doing is federalizing every union dispute and this is just this is just a grievance that you have here about a federal case and i would disagree with your honor because the fact only the union compile agreed ends and the defendant have netted that that is why he transferred the plaintiff because of the fact he filed a grievance which goes back to him being vice president of the union that's the only type of people who can actually file a grievance and it wouldn't be paralyzing every grievance that's filed it's any global green and that's filed by the union has protection because of the fact that it was the fact that he was a union person that f if if we accepted an approach like that would there be any limit to the nature of the claim is that a union would it matter what the nature was of a claim that the that the union  filed the allegation was that a member of the union or leadership of the union was being retaliated against for a grievance that vial it would only be the leadership and those people who are piling those claims on behalf of all workers those are the people who have rights not the individual that may be harmed it's the leadership from acting out and supporting the rights of workers that's being retaliated against because of that association with the union so would only be covering claims when their leadership is being harmed because the leadership can't stand up and support its workers what the unions use it's no longer useful and in he speaking a matter of well i would say he was a leadership his association so we don't even have to get to the first amendment straight public concern issue because the fact that we have an association claim that even if you look at the first amendment the actual speech of the grievance was a matter of public concern this court in swat swine court said public employee criticism of this internal operations is a matter of public me i just didn't hear you how was it how was his speech how was his association with the union how did that reflect the speech of a matter of public concern because of the fact he was a leadership asserting a right for all workers in with the city that was a matter of public concern and that's why it goes back to his association claim but if you don't even analyze it under the association aspect of it he shall still should've been allowed to get to a jury because if you as the first amendment straight case the you know criticizing your and complaining about your manager that you're taking up something that the workers had for twenty six years unequal treatment schoolteachers gets the interests at and this this unfair treatment and maintenance workers are viewed in the last ten schoolteachers they have the same rights so certainly the unequal treatment but we don't even have to go there because we can look us now that we don't need to consider this each claim that this or you withdrawing that aspect of your appeal and asking us to focus on the association claim i'm asking this court to focus on the association claim well ok so are you you're waiting any claim  the public is i concerned with that and i would disagree with you i think the fact that people are to being treated differently is a concern to the public  disagree because of the fact that this was the martin luther king holiday that they had offered twenty six years and why are they mean it's workers being treated differently than the public school teachers there's no reason to treat people differently e sociate together for the purpose of collective bargaining involve association all interests which the person amendment protects from hostile c action so i would always go back that there was clearly established law and also  because of the fact even say i would lose some qualified immunity say the judge rules against me i would still have the school district responsible for well what proof that they have that they were involved in this routine every day labor dispute there's and if there would be any issue there it would be an issue for the jury decide was he a policy maker or not i think you do it to understand your on your post five immunity point i was you were talking about the right of association being clearly a scab lis you don't need to make an independent showing as to the subject matter involving public concern but that the right itself is high it is one that has been clearly established that correct could you could you also briefly address the question of you make the argument that that the action here was sufficient sufficiently retaliatory to deter a person of ordinary firmness from exercising their constitutional rights but what city issue would seems undisputed   that experience through the year so what was it that was so materially different about his terms of employment and the wonders of wonderful state of the one nine hundred eighty three act if you don't have to do it benefit changes salary change just that little of now holding a birthday party in retaliation for harming someone is sufficient to establish liability so there is no we don't have to worry about discrimination what we have to show you know change and pay a change in saudi some distinct change but clearly here he said the case in my brief exactly this someone was transferred from a different school district and that affected their family and affected  this case my client has a children he's home house home school his children he's farther away he was reduced to being just a mop and a broom there was no work for him because he normally was not down there and it was only the fields that were  secondly the defendant serino admitted you know you should never file that grievance that gets us that same day suggestive retaliatory act it was one twenty two two thousand and sixteen the same day he was transferred when  just got there it was an unusual there was work there for him to do there was no work for him to do at the primary center so clearly it was retaliate tory ok thank you and seemed to be interested in it in that questioning my opponent the difference between this case and polarity is it was a pure association claimed merely because of the person's union membership they were retaliated against and just looking at some of the facts of the whole lardy the supervisor repeatedly stymied attempts of lardy to become the chief of police he testified that other officers told him that the supervisor repeatedly made statements reflecting negatively on his union activity that he the supervisor told another person that he would never become the chief because of his union affiliation and being a thorn in my side for all these years there is no evidence on this record of anything similar in this case there is no evidence of retaliation based on union affiliation that would be speculative in conjecture it is only  grievance and the allegation is that as a result the the this leader of the union has now been terminated would you agree that that is an association claim it may be an association claim but i would say that like our case it's it would be an association claim where the association is very intertwined with the speech what does it matter with the kind of speech is in that circumstance in a circumstance that you that you just  talked about or not and isn't the nature of the first and then claim there when it relates to the exercise of their right to associate with members of the union i think it has to do with more of the conduct of grieving grieving a situation  employment grievances are are not constitutionally protected speech or conduct of a grievance relating to stressful conditions in the workplace i think in the miller case monroe was was the other case a grievance related to leader of the union that filed a grievance of whatever nature that the leader has been retaliated against isn't that a pure association claim i don't think so according to police are you think he talks about just being affiliated with anything about whether he is even seeing hostilities solely because of his union membership it's not because of his advocacy on a particular issue which is what we have here and was what we would have in your case that's aspect of it which we have with the hiring of the three persons to take a spot he was always most and most of the year he was at the primary center the soon as we did those issues were back in the in the whether he's being retaliated against because of something that the union did and the fact that he is associated with daniel when we have serino saying you should never have failed that grew evanston to talk to me and banks saying because you filed a grievance on martin luther king day i know you'll have to work full days on snow days mr mr billow go was not the one who filed the grievance the someone else troop on behalf of the union so it doesn't matter you know in that situation necessarily mean you in the representative capacity as vice president of the union i don't i don't think so i think this was this was a person who had come to him prior to the filing of the grievance and said you know the guys are upset that they don't have martin luther king day off their their their their morale is them down there and i'm i'm i'm going to have to take a day off now you know i have these errands to do i mean that's what i think he meant by you in that situation and regardless when you get when we're getting into advocacy again that's where you're you finding the intertwining of speech and association solely limited to if you're retaliate against solely for your union membership you're unifil e ation which is again there are specific statements in that case talking about that he's being have a case where that might be might might happen but not in this case not in this record there's no evidence supporting any retaliation be solely on union affiliation on this record and in a big this week this record is based on a grievance be i really if you want me to but i just looking at the facts of this case i don't think we're getting there at all but your position has go beyond that the problem that the made maybe if it was if it was if it was an issue of public didn't read bits let's take it safe as a violation of the collective bargaining agreement here and by their allegations and by the record everything shows that the the so season kind is intertwined with what you have a cd that with that theory you're just  little bit wiggle out of out of everything well i think you have to look at the context of each case that comes before you in this type of man to other than if you have a pure association kate's like in a large city you know where the guy is saying you know i don't like him because he's a member of the union and i'm going to get rid of him we have nothing like that here on the record you know you know i just you know the association what i know but also there was retaliatory action grievance together with the fact that he was sent back three or four weeks early it seems to be in retaliation for his speaking but i don't i don't think we even get to that second part unless you know there is a public concern aspect of it why why a public concern should apply to all association when she realized the court came down with pl are you have to we filed our brief you know we would have got the reasoning of the cop case from the second circuit which talks about that any of them had had notice of what was going on here were gore was involved in the decision and with regard to the qualified immunity of serino there has to be a robust consensus of third circuit case law  knowledge the only case that is ever talked about not having a public concern element for an association claim is pl r t which is a single case center and wasn't even in effect when all this was going on so you're back up the fact is that be i think what i think the way you know we talk about it in the brief is you know there's never been a case where you know speech about a day off or grievance about a holiday you know was found to be constitutionally protected speech for polarity whether an employer could take retaliatory action against a leader of a union simply because of something the union was doing or saying or  they've added to it in that they say that if you if you're descript if you retaliate against solely based on your union membership that's is that now is is a at least there is a single case and it's clearly established in the third circuit that if you're discriminated it prior to that to to it's very late in some of the to better union but not in not in this situation is is it i think it has to be more specific than that i think everyone has obviously everyone has a rate of two fim of association everyone get an association then they're published because you're a member of that huge and i wouldn't put it that way i would say that he would have qualified immunity because in this situation because the law it was not clearly established in this specific situation where someone grieved about not getting a day off and they were transferred you know from their position you know it and where were the speeches arguably and in a time with the association i mean there is no clearly established law there's no case that established that they would be clearly violating you know constitutional rights and that type of situation could you dress they have the right to run their workplace in as efficient a manner as they deem necessary and they deemed it necessary that he go to back to the primary center at that point to do lack of work due to the fact that three new people were coming on the monday after he was public based on their workplace and how they were supposed to be how they wanted to delegate personnel and responsibilities in their workplace that would to me would be the of the efficiency  case that i have are the cases the talk about and you have the right to govern your workplace efficiently and if someone is causing problems in the workplace i think the monroe case was a different situation it was a teacher blogging about  her students and the they fired her because of that they had a right to govern their workplace to be didn't want this this type of controversy in the workplace and this court upheld her dismissal that would be be i could be analogous type situations that i would think that i've cited in the brief to talk about maintaining your workplace and proper allocation of personnel efficiency not wanting someone to be affecting other workers around them in a negative  he was going to take him away from the high school because of that but also they were getting three new workers and also his normal job was at a primary center which is where he was transferred to most of the year in ten ten months or so of the year that's where he worked been filed regarding i ring those three workers and they were coming on monday after the biggest reason is bearing down on i think it was i think it's a combination of all three of the appropriate thing we discussed what did they record substantiate you know complaining that they're not getting a day off i think just common sense you know from a reasonable inference from that is that it's going to bring down morale of people around them if you have someone complaining in the workplace that was the complaint that the union filed as well right complaining about not getting martin luther king day off between subject matter if the grievance itself would bring down mirelle how do we differentiate again retaliation against h i think he was saying or doing versus retaliation against him for with the union was doing i'm i'm not sure but i think again you know these are all questions that i don't think you need to even get to because i don't think it's it's not constitutionally protected speech or conduct constitutionally protected it's sociate claim so i don't think we need to to it and an employee grievance regardless of whether it's on behalf of you know several people or on behalf of himself for not getting a day off is not a matter of public concern it was clearly established that union leaders had protection under the constitution that you can take state action against them for engaging in activities so it was clearly established that the district court didn't even get to that  's because of the fact he found it with the public concern aliments the disruption aspect of it that wouldn't be applied for an association claim because it wouldn't be one of the elements that has to be met as applied to case told us it just has to because casually connected to the retaliatory act ordinary which ordinary deter a normal person being transferred right when you get to the high school and then going to a school that you have no work to do and everyone noticing that would deter others and also it deterred my client who would not speak out after that i thing as de minimus retaliator action in the sense that he was going to go back anyway it's just a matter of maybe three or four weeks and clearly routine work in high school during a certain or punish him and have never to allow him to go to the high school again after that situation so they continue to harm him and punish him for his union leadership activities  just speculation on the defendant's side that that's why he's never been put back there when going to the fact is i don't believe there's testimony that the reason why he's never been put back there per cent he was doing that for many many years that the reason for that is because of the fact that the new hires there's no what evidence in the record because of the fact it's occurred sense the depositions and whatnot transferred three months before your time can be retaliatory for three weeks not three months well it was january but he normally goes back in the beginning of march and february so as much more time ok there's no more questions thank