away earlier this summer his widow mrs constance oneok has been substituted as a party in this case for the late dr own you know and she presses this appeal in all those significant portion of dr only his appeal focused on the summary judgment standard and the facts which were improperly construed by the district court in favor of the movements rather than against those movements with the limited time that we have today i would like to focus on the district which is for ninety one us seven hundred and one this is a matter of st impression for this court the state of minnesota will argue that this court has already considered and rejected the appe math and the case hadn't been appealed and it wasn't right for appeal d the arguments that were made to the district court regarding section one thousand and three in the summary judgment pleadings were were not didn't we didn't make an appeal to the district court on the magistrate court decision because the matter is an issue of law and not related in factual determination and therefore the in the in the initial case which was probed say before our client had any representation and was not voluntarily dismissed that was challenge and i believe that the the law in the cases that we have here support th specifically provides in section one that no state shall get nine to any person within its jurisdiction the equal protection of the law and authorizes section five congress shall have the power to inforce by appropriate legislation the position to this article at the time the jet was decided the section one hundred and one dollars provided only that all persons within the jurisdiction is denied they show the same rights in every state and territory making them force contracts and sue to be parties and give evidence in the full equal protection and benefits of the law and providing interceding with the security of persons and property enjoyed by enjoyed by white  the expression the express actions at law provided by section one hundred and three dollars for the deprivation of rights secured by the constitution and the laws provided the exclusive  response to quote recent decisions of the supreme court by expanding the scope this is the intentions to expand the scope of relevant civil rights statutes in order to provide adequate protection for the victims of discrimination the findings of the legislature was that quote legislation is necessary to provide additional protections against unlawful discrimination in employment the statements of findings and of purpose are specifically written notes appended to section one hundred and eighty one dollars and not to any other section your sister circuits have nearly all addressed this exact question and for the most part i respectfully submit fail to give the pla language of the statute its appropriate authority when taken in context with sex with three thousand nine hundred and eighty nine supreme court decisions which affected the right of the rights of a black man employed by a state to sue for racial discrimination in federal court those cases being jet and patterson versus mclean and will versus michigan department of state police will employee of the state of minnesota was unable to seek money damages from whether it discrimination under section one hundred and one or section one hundred and three unlike any other employment discrimination claims that the legislature made absolutely no intended to create a cause of action against states or state actors directly but acknowledged that a cause of action remains against private employer the modification of section one thousand nine hundred and one was brief subdivision b was added to over to overrule holding in patterson and section one community one section c u was added which provides protections against impairment the rights protected by this section are protected against impairment by non governmental discrimination and impairment under the color of the law each or sister circuits to rule on this issue have determined that the addition of subdivision c is reflected in the legislative history as an intent the the holding in writing and being affirmed by this by this language is specifically that portion of runyan which implicitly over rule which was implicitly overruled by jet which held  hear from me thank you your honors may please the court the defendants respectfully request that the court affirm to grant a summary judgment and the grant of the motion to dismiss by the district court in this matter the continually stripping legal bases in this case have obscured a pretty straightforward matter first of all as an initial place the plaintiff has a band and his discrimination claim he never raised any points about discrimination and his notice of appeal he never raised discrimination in any of the issues presented to the court it's not been presented at the briefs or in the reply in fact the briefs never even cite the standard for discrimination claim anywhere and there  and for this reason alone the discrimination claim should be dismissed similarly as it relates to the retaliation claim whether it's brought under section one thousand nine hundred and one whether it's brought under section one thousand nine hundred and three the district court ruled that there is no evidence of causation and the plaintive has not in any way addressed that in his arguments and to before the court and for that reason and waive that as well and the court should summarily affirm that grant for onya could teach the schedule that he wanted is an academic prerogative and the controlling case law on the circuit says that not being able to teach your preferred schedule is not an adverse action and the same is true with the other piece that you praised which is the denial of certain oh the class it required well your honor i think that what if we're talking about here are very a number of levels of speculation as to what's going to happen there the st is was there going to be an additional section of this class that was going to be taught if so does that mean that there were going to be more teach more students taking a class under mr onya if they did that as opposed to his online course and does that assume that all of those students would have purchased the textbook that would have result that in royalties to mr onya there is not evidence that's been presented in the record about that and is pure speculation as to that quite so i agree that reasonable inferences here's the doctor on his favor but in this case i think what we're talking about here this downstream effect theory i'm not aware of any case law that supports that they are very and i'm not aware of those the evidence that's been presented in the record that would support that as well  similarly there's been a claim that the evidence or that the reason given for the scheduling the student needs and the needs of the of the college are pretext for retaliation and they base that largely on the busty declaration which that declaration is the court found is entirely consistent with this deposition testimony and consistent with this court's holding in the basket case finally i think i can and i will return address  one claimant whether there is a separate cause of action for that plain and simply sovereign immunity prevents this court from inferring causes of action where the legislature has explicitly stated that and in this case every circuit that has looked at this issue specifically has determined that there is not a separate cause of action under nine hundred and eighty one dollars and similarly did this court in its artist decision found it so improbable that there would be any is i came into this case as at the appeals level i didn't litigate the case below and i have only seen the appendix that's here i don't see mention of the argument in the appendix but again i don't know for sure what was argued before and what was the target in front of the court because i wasn't there so i don't see anything prior and i don't see an argument that was directly addressed by the court in the attended more of the argument but i don't know that for sure so i can't say for sure whether or not that's the case or not judge there was no cause of action correct your honor i just what i don't know and looking at the briefing i haven't looked at the briefing and thus it's not in front of the it's not in the appendix it's not in the record that i've looked at so i don't know whether the plaintiff in this matter actually raised that in the briefing with the court or not i know that we brought the claim under artists and district court cases that have related to that but whether or not this argument that there has been some amendment as a result of the earth changed the law as a result of the amendment to the civil rights act i'm not i'm not aware whether or not that's been brought before the court i just honestly don't know the answer to that you don't know how i think your i look at the record ourselves go ahead with your i'm sorry about that product in terms of the facts this all really arises out of this disc this claim of discrimination lawsuit that was brought in two thousand and seven my doctor o defendants in the prior action and they were involved anyway based on the record from the court and the matter prior so this becomes down to the allegedly adverse employment action which is the scheduling issue in december of two thousand and thirteen so over a year later there was a scheduling issue where there was a cap on a class students needed to take a class for graduation the school presented a couple options about perhaps creating a new class for doctor only to teach and looking at the situation alternately decided to simply lift the cap on the current cat so that students could take that and no need to create a whole nother section to go forward that's the material action in this case and the only evidence of a response to that is plaintiff's affidavit which he has submitted but the affidavit thirty one dollars pages is largely lacking in foundation and as the district court found it's largely out of its long invective but at the summary judgment stage accusations must surrender to evidence and the evidence based on the affidavit and dr own his testimony is that he had no knowledge about why any of the decisions were made and there was nothing to dispute the reasons given by the defense in this case again the discrimination claim we've heard than the word discrimination we heard at the beginning of the argument here it's mentioned a couple times in but there is no meaningful argument on the discrimination claims anywhere in the brief it's not the notice of appeal it's not in the statement of issues it's not addressed in either brief and the jazz person case is very clear that parties failure to raise  discuss an issue and as a proof is to be deterred is to be deemed an abandonment of that issue for that very reason the discrimination claim must be dismissed and the district court affirmed the same is true on the retaliation claim the district court granted summary judgment for three reasons one was the material the adverse material action nd was causal connection and the rd was pretext causal connection was not addressed anywhere in the plaintiff statement of issues it was not addressed anywhere in pla retaliation that's not what the law says there's no case law for that and as this court very recently in july said in the private versus county of right nine sixty four dollars f the erd seven hundred and ninety three dollars case when there is no meaningful argument and the opening brief that results in a waiver and in that case the plaintiff at least identified the issue in the statement of issues and then didn't argue about it here it wasn't even identified in the statement of issues it's not before the court the causation and the cour affirm to grant a summary judgment on that alone in terms of the merits there adverse action that this court and the recchi o versus creighton university case was very clear that the scheduling decisions do not rise to the level of a material adverse action and there are a number of cases we cited out of tennessee connecticut new york and indiana letter very similar to this as well and as a said quite downstream effect of the textbook does not apply what we're talking here is simply speculation that there may have been some kind of damage to him but speculation doesn't create an issue of fact for summary judgment finally on pretext the bus affidavit simply fills in testimony based on a what was asked of him at the deposition was as you sit here today do you know why this decision was made and the answer was no the decision was made five years prior and quite simply the witness didn't remember that there were documents related to this they were in the plaintiff's possession they were not presented to the witness in any way shape or form and at summary judgment he was presented with that document he was given the opportunity to allow it to refresh his recollection and then at that point based on and you can see this is in our appendix seven o five the seven o seven the e mail communication contemporaneous in december of two thousand and thirteen largely explains exactly why this decision was information was provided based on refreshing recollection from a document and based on that in the contemporaneous document of the time the court found that the consideration of the affidavit was not contradictory with the prior deposition testimony finally because plaintiffs spent so much time talking about the section one hundred and eighty one claim i do want to address that there are no claims available to the plaintiff a separate cause of action under section one hundred and eighty one the th amendment and that does that the plaintiff is correct that the artist's case didn't directly address the argument that he's raised here the reason for that is that there was no reason to do so it is very clear that this has always been the case and there was nothing about the civil rights act and the amendments to the civil rights act that changed the law and this place every circuit that has looked at this issue and has addressed this issue has found that nothing in the civil rights amendments addressed or revised section one thousand nine hundred and one to allow a separate separate cause of action under that statute and even the th circuit which is the one circuit that allows it as it relates to many municipalities does not allow it as it relates to states and state entities like the individuals in this case i think what's really helpful is looking at the two playing case out of the nd circuit that would be the most recent court of appeals decision on this issue what we see here is a specific reference to the runnion case we see a specific reference to the patterson case there is no reference in the senate or the house to the jet case nd as  in court points out there is a difference between the creation of rights and the creation of remedies and one thousand section one hundred eighty three dollars has been the exclusive way to bring a claim against state entities the remedy we're talking about here and what we're at what the plaintiffs asking for is a huge change in the remedies available money damages against state entities based on the civil rights that you and the idea that the that congress changed the statute to allow that with no clear indication in the language of the legislative history simply does not make any sense and finally as the supreme court has said it discourages implying rights of action without clear legislative intent and we don't have that in this case as this court has repeatedly said ed not everything that makes an employee unhappy is an adverse action we are six years into this litigation and it's a preserve it's a perceived slight and search of a legal theory the district court dismissed this on multiple grounds some of which have been waived and abandoned because they were never appealed and all of which were properly granted by the district court and the district court risks are the state respectfully request that the court affirm the decisions of the district court and unless again trying to figure out why he didn't object to it and why you never raised it was not something that we needed to object to and we didn't raise it at that point because  a substantial amount of the rest of the case had gone forward in any case the this specific requirement for us or for my client on that issue i believe i have  law on that issue and so there was no need to further relegated at that point the question before the court to section eighty one gives a person the right to pursue a claim or not and that's  f a cause of action that's created by statute that dismissed with prejudice in the district court is rightly appealed and was preserved for this court for appeal the both parties to fully briefed this issue now and have made considerably more elaborate or more thorough arguments but there is no requirement to appeal busy or busy raise than to object to  recommendation report in order to preserve the arguments if they're determined on a legal standard because the law the case long issue doesn't require and that wasn't even argued by by the well thank you for your argument thank you to both counsel for your presentations today the case is submitted and the court will file an opinion in due course and concludes the argument calendar