court erred in this case in two ways under this court's decision in smith v perkins this court decided that an reviewed state agency findings do not have produced of effect in leader federal court proceedings in actions under the a a very very clear holding and that's exactly what happened in this case the district court to respond to raise the issue of due process that wasn't even the basis for at oral argument the court said wait this case is about to process and the court said isn't the real issue whether or not mr will banks got due process in the school board hearing because and i'm paraphrasing but essentially you know this court is not going to overturn an administrative hearing you know and then and then it shifted to due process in the decision itself the written order memorandum it's a little less clear however i think the concluding paragraph of the order supports that the court really just was focusing on the precludes effect at that school board hearing the court says whether or not rosa zax rose the defendant in this case was the principal and the supervisor of mr well banks were motivated by retaliatory animus towards well banks is not an issue the school board's decision was an exercise of independent judgment the process afford it will banks free the decision of any taint by  we will not disturb the school board's decision but yes your honor i think you may be misinterpreting i mean there are a lot of cases where someone is alleg retaliation and then you look at the us and somebody yells was an independent decision maker not doesn't have to be that there was in the you know with state perceiving something like that it's just they didn't make the decision and that get into the whole capsule thing why wasn't that what the judge was that's an excellent question your honor because i've gone round and round in my own mind about this question but i think because the judge and i don't think it's clear but the judge really focused on that due process if you look at the transcript of oral argument and and i think it's really the fact that ro the court recognizes that ruth may have had retaliatory atomised so let's look at that and then look that's look at the adequacy in this was briefed as well of this independent well the independent judgment or investigation of the school board all of the information received by the school board granted they did see the two videos but the remainder of the investigation was soley based on information provided by rose now this was kind of confusing i mean it was flushed out in the depositions and talked about motion for summary donald wood was human resources director donna would essentially provided a summary to the board but in his deposition donna wood said you know when he was asked what did you do to investigate this he said why talk to rose mr wood did you interview the students no did you interview mr will bring snow did you do anything independent other than speaking to mr rose no further in terms of if we judgment which is kind of where i'm going as well the school board owned boyer in an email said just to be clear you know this is more of a report to a board than a hearing there's nothing to indicate that the school independently investigated this case let's talk about the videos because when you go absolutely so school boards videos and said ok hypothetically that's enough and that's going to be essentially a pelleas argument i mean i see we're below well i'm not you know i don't i'm not clear your honor if that actually was the basis for the the district court's decision to be to be clear if you look at the order from the district court he even says he's you know whereas  mentioned that mr wilbanks slammed the child into the wall the district court says well they were kind of going back and forth and there was momentum that didn't happen and he really never got the dish quite never goes through the really goes through the mcdonnell douglas prongs i mean doesn't really say you know you met the the you know there was protected activity there really do the orders really do an analysis of the problems whether  not it's fuzzy frankly but let me get back to your question about the videos i think a perfect analysis is an excessive force case we're all we all are inundated these days with terrible police shootings well i say terrible maybe they weren't terrible i think that's just the point you know you see a video a snippet of a video on the television and you a maybe as a lay person this is this is terrible that police officer you know he's going to jail and then that case goes to a jury and the jury finds that it was a justified shooting what happens in a case like that context and here the only context provide it to the school board was rose who the court clearly states may have had brutality tory animus and that's where i say in the school board then could not have without having all the facts they could not have made it clear you know done if they didn't do an investigation frankly and so their judgment in a sense wasn't independent because it was tainted potentially by rose's retaliatory animists and again this is  again context the disciplinary records of these students are in the or in the record and certainly i don't want to imply that you know these children should be manhandled i am not implying that at all i mean you know i'm a parent there's certainly been times when my daughter was very young she was a toddler she went to run out into the street what did i do i grabbed my arm you know we're in the parking lot no no hold my hand and i grabbed her these are these are cognitively impaired children and this student in particular who review his his record really was a student who potentially posed a danger to himself and others believe just that  what happens if the student is allowed to flee there's why c s policy says we can't allow students to be alone running around the hall if mr well banks had not tried to stop the student and the student had left the building and something happened to the student there would have been liability as well as well as a hobson's choice and so none of that information or none of those types of facts were prevent present to the board the student's disciplinary records not presented to the board and it's interesting because later mr rose himself is involved in a very serious physical altercation with the student this say mr rose he does not lose his job he has a student that he brings got to his office to the principal's office this student is agitated but what what does he do the student leaves he just leaves he's like i'm at a here what is mr rose do mr rose follows the student he goes after him and he tackles  to the ground holds him down on the ground student is a red mark on his neck mr rose keeps his job it's interesting that an employee another employee involved in a more frankly again these are questions of fact that a jury could see is a more serious and violent altercation kept this job he was also currently a defendant in this lawsuit and that's why i say context is is important so if the school board's decision if if you know at a minimum there are questions of fact about rose having retaliatory is where there was with rose there was one incident there are didn't he get more punishment out of than your client did out of his first incident but first incident in the differential treatment runs in the other direction the first incidence it that's true your honor absolutely but again these are all questions of fact that a jury could weigh in deciding whether it's retaliation get that their questions about  it has to be some way situated in this is about a firing after a second incident and with warning the first it's it really you know was a non issue i mean there was a discussion a warning but there was you know there was nothing even put in the student there was nothing to indicate the incident the student records it seemed as if this don't put your hands on students was not the direct i believe mr rose did say that but i think there's a difference between placing if every teacher was prevented from placing their hand on the arm of a student they pretty much are well actually under your honor i hear what you're saying but actually under it's the community schools policies there are they are not if cs on policy say that a teacher actually can physically intervene with the student this is the board policy to prevent harm to self or other or to quell a disturbance so actually mr will banks actions the school to finance this is one of those employment discrimination slash retaliation cases where it helps i think to take a step back and take a bird's eye view of the facts without peeking at the allegations and i submit if you do that if you explain the facts of this case all the facts to a lay person or even to a lawyer and then said what protected class is that issue here discrimination against what protected class they would have no idea and even if you said is it age race gender disability they would have no idea and even if you told them the claim is that there was mr wilcox was retaliated against in order to protect what protected class they still wouldn't know and my point is when as here a plaintiff is limited to the mcconnell douglas test i think it's important to remember that test isn't to devolve into a debate about the merits of the reason given for terminations that test ill has to leave open an inference of unlawful intentional discrimination and when you look at this case is there any suggestion or evidence that he was terminated because of unlawful discrimination against persons with disabilities of course there was that he was terminated because of the incident the second incident that followed a warning with the student and basically all the argument that we've heard in the briefing in even today is argument about the judgment call whether it was right whether they were fair it was fair to fire him whether was excessive whether the kind of strict fired other teachers for physical contact i don't know i don't know and i understand that this goes toward pretext but i think it's important to start with the proposition that you cannot simply prove pretext by showing that you disagree with the not a jury question whether they simply disagree with the decision to terminate  there still has to be a showing of unlawful discrimination and when you look at the factors here that's why they fail the the first two factors of the mcconnel douglas stuff that i've talked about in the brief neither one of them is met but they're especially not in that when you consider them together and that is he didn't gauge and protected conduct and they didn't know about it what he points to primarily is the september e mails where he's complaining about staffing now those of themselves i would say are not protected conduct we've argued that they're not because they're generic complaints in the employment setting they're not complaints about discrimination against persons with disability but the board didn't even have those the only email the board got was the october twentieth email and this was after they had already taken action against mr wilcox and this e mail was simply him presenting his side in the  incident with the incident with the student he puts in toward the end by the way i also have a problem with staffing if you would increase staffing in the classrooms it would make these less likely well that is the classic example of a kind of a generic complaint that is not a specific complaint about discrimination for which he was retaliated against and that's where his claim fails even if even if someone were to agree they should probably should have been fired it was excessive force that's not the issue the issue and the only claim it's been asserted is did they fire him in retaliation for his having complained of discrimination against persons with disabilities that's it and clearly the clearly that's not met because they didn't even know about the the e mails that in which he was complaining about staffing which again i would submit don't even qualify as a specific complaint about category of student is supposed to have the kind of staffing that he complained he didn't have in his classroom in other words when you have disabled kids in the classroom there are lots of levels of additional staff that are pretty typical e provided depending on the level of disability and those kinds of facts so if if his claim is that the only classrooms that should have had the kind of staffing i was complaining i needed were the classrooms for disabled kids and i was complaining that i didn't have the staffing that i needed for those kids why would that not be a complaint about treatment of disabled children because a complaint about staffing just like a complaint about compensation for the teachers or any other complaint about conditions for the teachers could always be viewed i suppose as a complaint about discrimination of the city is this is that a complaint about the needs of the teacher or is that a complaint about the needs of the children yeah i think it could be fairly be characterized as both but you can say that also about even the needs of the about a complain about salary we're not we don't have enough school we don't have enough resources we're not being given enough resources i need to make more money my assistant need to make more money or you're going to lose us and that's going to harm the students something about staffing in the in the classroom he did he did but my point is twofold one to complain about about staffing and nothing more is identified the reason there should've been more  because it was the nature of the classroom in not certainly not in his october twentieth e mail the october twentieth e mail which is the only email that the board guy simply said toward the end staffing problems this year have further complicated matters and made the situation in my room even more on time tunnel consider and then he goes into talking about staffing requirements and that's after he's given his side of the of the story with regard to the incident but the earlier one mentioned maybe i think that might be i knew about it i'm sorry rose knew about it right the principal right  acting in retaliation that's that you know that's probably fair you've articulated a better than she ever has but my point is even even so that that is that doesn't show intentional discrimination the failure to conduct an investigation and by the way they had the videos they looked at the videos and they saw what happened so the suggestion that they needed to go beyond that and disbelieve rose what is what what about the video supported the guard well the judge batchelor's right it's teachers have to be can do almost nothing these days i mean i remember when i was in grade school we said get spanked things have changed a lot since then you can't really touch the students and he was warned and on both fronts events which are captured on video one and pin the kid against the wall the kid complained and in the second episode he is shows on the video they grabbed his wrist and the kid complained so this is what the board is faced with a second episode in three incidents where he was just warned you can't put your hands on the students and the rule with regard to investigations is they've got to show that the board knew about his engaging in protected activity not that they could have known about it if they had conducted a more detailed investigation that's what they're saying the board didn't know about the september complaints about staffing at the time they took the action they did on october eighth all they knew was the video and the description of what happened which was consistent with the video so they didn't even have any knowledge of the protected activity that supposedly is the basis for their retaliation that's why the claim  again pretty much everything in there but in her brief and even today she talks about failure to conduct an investigation should have known  should have done something differently should have looked behind this it doesn't give rise to a jury submissive will claim because they had to have known that's the whole purpose of retaliation you had to prove that they knew about this protected activity i don't really understand the argument that they've made about the trial judges comments on due process the judge did seem to find a due process angle and he asked the parties dismissed supplemental breeze which they did then it is opinion though he dealt with a straight retaliation claim and why it fails so i haven't even briefed the due process part of it i don't think that's really part of the calculus he gave one of several reasons he could have as to why the retaliation claim fails that is essentially judge white you said it correctly it was made by the board decision was made by the board independently without knowledge of his having in gauged in protected activity that's that's really where the case fails and we think he didn't even engage in protected activity those are the issues judge batchelder and judge what you've explored today i still think it's it's not enough in when you're talking about the mcdonnell douglas test and drawing these inference is especially in the context of retaliation i would submit you have to there has to be specific complaint talking about discrimination any kind of generic complain about staffing pay the type of garden variety complaints that you're going to hear in the work environment shouldn't be in  about everything every complaint was about staffing and my argument is this is not it's not if you're complaining about staffing yes of course it has a component of protecting the students but it's not a complaint about discrimination against this i mean if you say this is a special ed classroom these kids need more supervision i had a problem just last week because i was alone and i couldn't attend to both the class and the student we've got a real problem here and what do you have to say i think i would think again in the in the context of a work complaint it's got to be more specific and say something to put them in the if they state law requires well you've got to tie it to discrimination against persons with disabilities that's what he didn't do saying i need more staff is not the same thing as saying you school districts are discriminating against people with disabilities is up to say this isn't fair to the kid i don't think it is because it's that's an example of a generic complaint that any teacher would make in connection with any complaint about their environment and i understand that it can be construed that way oh if rose reads that oh boy we have a troublemaker here he wants find that the complaints about the complaint does qualify as a complaint about disability discrimination then you want to green you would say that that's enough but to me a complain about staffing even if you're tying it to the well being of kids is not a complete not complaining about disability discrimination i think it needs to be more specific it's got to be more specific than that i will  court case a fine and just the second where the court said in this in this setting this is referring to an informal complain about the environment by the plaintiff and here i'm quoting from the court of some page eighteen of my brief such informal complaints must be sufficiently specific to make it clear that the employee was complaining about conduct prohibited by federal anti discrimination law and that's risky c e o the make you age sixty eight f supp second seventy five all very quickly your honors there were very specific complaints i'd like to say to the record twenty dash one page eighty three fifty six page six of my brief email sent to rose there's been talk about removing our kids he's referring to his special education kids from their current inclusion in jenin and elective classes in putting all the students in our two self contained rooms together form our own segregated elective section this is taking place each of the last two years despite our protest since this is the only jan and contact most depressed students will have this year we would not be providing faith which is federal law free access to public sorry the federal access public education appropriate education to our students and thereby in violation of the intent and letter of federal law how should we proceed perhaps most important is staffing that he says given the law governing caseload the requirements outlined in our students i e peas and most importantly in the needs and interest of our students case law is clear that advocating on behalf of special education students is protected activity he's not just saying mike mike case altered to high he's talking about eyed peas because that will say you know student a need aid to register complaints in that setting without it triggering this and that's that's what they do that's ok if you don't i'm sorry or i mean it's ok to register the complaints right but it's not ok to be fired for them and the eleventh circuit in stimpson versus city of tuscaloosa talking about the caps possumus that the decision maker can be reliable for retaliation even if the decision maker i e here the school board had no retaliatory motives and when does that happen and the quote from the eleventh circuit in this case is when the decision maker followed the biased recommendation without independently investigating the complaint against the employee so here the decision maker school board got their information basically off from rose who the district court kind of acknowledges may have had a retaliatory anim they did what what is the school board supposed to do with a teacher who on more than one occasion but more importantly having been warned not to do it puts his hands on a student your honor i think that ok thank you it depends it depends on context right that's why we have that that's why normally you have an investigation an actual investigation if it is the fact i mean what troubles me about this cases if it is the fact that the instructors were not to be putting their hands on the students that in fact is not the fact your honor with all due respect as a matter of fact as i mentioned it see school board policy and i cited in the reckonings that way after the first incident he was and then later the school board the actual school sent out confirming the e mail so also in the record to staff talking about when they could physically intervene with students and they're still in that email there was no blanket prohibition against physically in or helping but  the concern here is that there's a sort of a there's clearly a sort of a general don't put your hands on the kids or i understand that of course so he put his hands on the kid and he was told don't do it again and he did it again and so i'm struggling with the idea that context is what matters here when in fact it would appear from the videos that it's not disputed that these two incidents did happen and there's not don't do it again would you like me to respond quickly ok you know again i think you can take context out of it because really when would it be ok if he just pat a child like you know kept a kid on the