good afternoon to may please the court you're really becoming a pain in my ass those are important words those are words that were spoken by sheriff woods to our client broussard that make it very well known that he is concerned and is aware of statements that are being made by him both internally and externally in the trial court's dismissal of mr broussard's claims first and foremost this was dismissed at the twelve b six level that's an extraordinary remedy a remedy that is not often use in my experience a trop practitioner very rarely used in this instance this should not have been one of those instances in which a dismissal was granted before any discovery before anything happened on the question of the pleadings of course we i'm sure you agree we apply paul and you didn't you didn't plead that mr woods knew of your client's external  and well his pleadings were substantial even after it was we amended the complaint all inferences of doubt in these instances must be construed in the favor of the plaintiff now this applies both to his nine hundred eighty three claims and to the again what the twelve b six face or what we having gotten there and that's really argument today is that we should be afforded the opportunity to get there we still have to prove that he was alternately aware that this speech happened and that he was ultimately the person that this speech was about we have to prove that no doubt in fact we still have to survive summary judgment on that issue after a reasonable amount of discovery was happening but that's not the case here now any jersey or to answer your question specifically would know of extra no speech in march of two thousand and nine where broussard spoke out regarding wasteful spending to retired county commissioner demain also in september of two thousand and ten michael i had dinner with a number of individuals including judge lane walker regarding wasteful spending abusive overtime and corruption in upper management including sheriff woods more external speech i could give you instances of internal speech which include the reporting of rampant abus overtime supervisors including major james singletary payroll duties were removed from her start as a result of this complaint and in fact it was so i was told again in no uncertain terms you're really becoming a pain in my ass there's nothing in the record that would contradict that this statement was ultimately made by sheriff wood so i can continue with more examples if you like judge what i'm interested in on the external speech what facts todd knowledge on behalf of the canny that extern speech was made and i think judge you're talking about again would a reasonable juror come to that conclusion of the not it's hard for me see how they would know about the speech at the dinner how would they know about the other externals age ok well again we're we're not there yet is my point and there's a litany of other speech speech where he went to a texas tea party rally to discuss the same wasteful spending the corruption  naming sheriff woods in a in a large four and again so just the mere statement you're really becoming a pain in my ass goes to knowledge that this individual sheriff woods is in fact aware that statements are being made about him that's all we need to put in front of the court at this initial phase so we again judge we'd have to prove that at some point he did have this requisite knowledge because obviously that is one of the characteristics and a requirement for a claim like this one to proceed successfully but again we aren't there yet now i think another issue here is  make the distinction between internal speech in extremis speech in this instance part of his job was pay well there's no question about that part of his job function and what i'm going to call this the job description type of work was to address discrepancies in the payroll now that means hey payrolls wrong we need to address this payroll is not correct that would be part of his job function but as a private citizen he's addressing publicly corruption and malfeasance both out work which that itself would be beyond the scope of his job description duties that it's one thing to say the payroll is not correct it's a wholly  thing to say that there is corruption happening the reason there's a problem with this payroll is because folks are being paid for time they're not working they're paying being paid overtime for overtime they're not working they're being paid for time where they're working other jobs so they're on the payroll getting paid meanwhile they're working another job during that same time these are absolutely matters of public concern and under anderson and our setting it's very clear that we're gardeners of where these statements are made within the workplace in his chair or wherever he's working that day or he's outside a tea party rally or or speaking with a group of commissioners and former commissioners that this speech you leave or you're going to be gone one where the other at that point if you're in his position you have the option of saving face protecting your medical benefits and all the benefits that you work so hard to acquire as a dutiful public servant who had the guts to step out and make these claims known her lose all of that everything he worked for would be gone if he didn't leave on the terms were presented to him he was ultimately forced out and that's  required because any as long as it has been pled that he knew not how he knew and i understand there's a subtle distinction there counsel how do you say that he knew without saying how he knew well that's not the requirement  andersen and that's not the requirement of our study to make that were could be a subtle distinction all that matters is that we pled without delving into whether or not that pleading is actually correct or not at this phase that he knew so we have to say he knew we don't have to delve into the how he knew how we got there whether or not he would later had dinner with some other commission or that then raise it to him or they were playing golf one day and it became known to him in a casual conversation all that does not matter and that's whe this court has so much since then those are all the cases since that time this court took anderson and interpreted garces which is united states supreme court case that is subsequent to both ball and twamley for this particular set of facts fact pattern just like this one and in andersen said just that few don't have to say how you just got to say that and the same applies to the qualified immunity component unity protect all but the plainly incompetent or those who knowingly violate the law so when it comes right down to it when we're looking at qualified immunity the legal actions are protected statutory and constitutional rights are violated by official and that the right we can show is clearly established that it that's all you need immunity does not protect those that knowingly violate the law now so that also applies to the qualified immunity component now again the four erred in attempting to address the correctness of the plaintiff's version of the facts versus the pleading itself the pleading does not need to say anything but the sheriff and that's it will get into the rest as we go through the discovery process was important to the district court judge now but what do you think that's a problem i don't think of you i don't think it's a problem for us all all we have to show again at this early phase is without proving that this individual knowingly committed illegal acts is to assert any pleading that he knowingly violated the law he knowingly allowed for folks to be wasting public dollars and in my new one anderson it's clear that corruption malfeasance improper illegal use of public funds are matters of public importance so under andersen that this court has already held on and decided those are matters of public import corruption malfeasance improper legal use of funds now all we have to plead judge is that this official in his official capacity as sheriff knew that this was happening was aware allowed it to happen was even involved in it without proving and going to the merits of again how that actually transpired so that is in the pleadings and again the truck or erred in not allowing that to be fleshed out further on in the process  dismiss this individual based on qualified immunity again the immunity only protects those that do not known we violate the law so that in a nutshell sums up our qualified  argument i think the court blatantly missed the boat on that one and back to the point of substance the substance of these communications whether extra or internal the record is is filled with instances of actual communications it's a matter of substance over form with regard to the substance we're talking about the corruption the malfeasance the improper use of public funds the forum is goes to the point where happen the admittedly these these communications happen both at work and outside of work but the substance goes beyond where it happened because as long as these communications go above and beyond the scope of one's primary duties then there is a protection here now deputy brossard isn't deputy twenty four hours a day three hundred sixty five days per year he's also a private citizen and i believe the truck or ignored that fact in anderson goes on to say that a citizen that works for the government is nonetheless a citizen and as a private sitting citizen he addressed these issues of public concern that also in anderson and our city make it very clear that these matters that have been pled that are in the pleadings in the amended pleadings address those are automatically items for public concern now again he was not simply just performing his job duties even under pickering he wasn't speaking out about work so his claims are protected as protect speech addressing matters of public concern regardless of whether or not it was directed at their superiors and the same case law all the same progeny states that it doesn't matter who they're directed at it's ok that they were directed it at his immediate superior that wouldn't otherwise preclude a claim against him it wouldn't preclude a claim against jefferson county they would not allow for a qualified immunity defense  now again twenty six motions are really good granted should not have been here he spoke as a citizen on a matter of public concern and the speech precipitated the adverse employment action he was forced out of your pain in my ass i see that i'm running out of time so i will come back and use you shave your time for a bottle i save my five minutes republican thank you judge mr calvert specifically recognized that although you may not have to plead detail the facts you must plead more than mere labels and conclusions which is all that was pled by the plaintiffs in this matter with regard to this case as the appellant pointed out they are both instances of internal and external speech with regard to the comment you're becoming a pain in my ass that comment came when the sheriff confronted mr broussard about his failure to approve overtime it was clearly internal and under garcia said he it was part of mr  duties and therefore was not protected speech under the first amendment but when we go back to twamley and with regard to the pleadings of the plaintiff we know as the court kno twamley rule was applied in all civil cases and basically some of the statements in twamley are very relevant to this particular cause of action that factual allegations must be enough to raise a right to relief above the speculative level and twamley the allegation was that the aggrieved party believed there was a conspiracy that's what's been played here a belief that sheriff woods was aware of this and turn on external speech the plaintiffs were given a right to amend but when they amended there's only one instance which is the one that's already been discussed where sh woods is pled to have known about the statement and that was when sheriff woods confronted him about a specific job duty which is not protected by the first amendment in it by o and in the court said the pleading has to move it from conceivable to plausible the language in it by was conceivable to possible and twamley it was from possibility to possibility and in this matter we have instances of internal communications on every single occasion that was made to a supervisor mr broussard was a senior sergeant he had training and supervisory responsibilities and in each occasion those were made internally and they fall into the garces the rule that it is not protected speech with regard to the instances of x tunnel speech there is not one single fat pled that sh woods knew about any of those and in addition to that when we look at some of those four years previously apparently mr broussard told a retired county commissioner that's all we have then three years that after or three years before the adverse employment action he had dinner with the judge and other people including mr broussard swath then the other instances seven instances basically the last being undated but in which mr broussard alleges he was required by judge sanderson a district judge to make certain reports at as a bailiff and he was told by chief deputy stephens he did not have to make those reports when he didn't make that when she he told that to judge sanderson there's no facts indicating that was ever communicated to sergeant i mean to sheriff woods but regardless that is an internal communication to an outside agency but as this court recognized in gibson versus kilpatrick the fact it's made to an outside agency if it's within his official duties which it clearly was this was a report had asked mr broussard to make so consequently this was not protected speech to judge sanderson regardless of whether or not it was actually conveyed to sheriff woods for which there's no evidence of that but when we take all these instances which there are seven specific instance they back to march of two thousand and nine then two thousand and ten he spoke to the tea party in two thousand and twelve approximately fourteen months before his adverse employment action he also spoke with a jefferson county sheriff's deputy a coworker outside of his employment all of those are far removed from the disciplinary action made the basis of this litigation in addition to that when the court considered something similar in burnside versus kalen the court noted that only thirteen months at that thirteen months had passed between the time of the only alleged protected activity and the adverse employment action and that was a motion to dismiss case also in the fifth circuit and the court said without a causal link between term and nation in the alleged protected activities there is no constitutional violation as a matter of law with regard to all the external complaints made by mr broussard there is not one single fact pled pointing that sheriff woods was aware of that or that any of those individuals whom he communicated with advise sheriff woods that communication this is similar in some respects to the determination that was made in houston versus e b i nine hundred ninety five this circuit case in which the court said an indispensable element of a promise face a case of retaliatory complaint in a workers compensation complaint and they must have acted on that in that case the fist circuit said that is an unavailing leap of logic and that's exactly what we have in this case with regard to the extra annele speech asserted by mr broussard there's not one fact indicating sheriff woods was aware of it not one fact indicating any of those individuals communicated anything to sh woods so you have the same level of information own each one of those instances and in one of those dinner parties mr broussard points out that even his wife was in attendance you have just as much proof that mrs broussard communicated this to sheriff woods as you do any of the other people involved that he's identified in the external speech that is insufficient that is the deficiency in his pleading the court last year in robinson versus jackson state university said the causation problem of any retaliation claim requires proof that the employer knew about the employee's protected activity that does not exist in the pleadings of the plaintiff in this case other than that one occasion when there was a communication with sheriff woods now when we talk about the internal complaints we know that gaar said he says the threshold question is whether or not the content of the speech but the role of the speaker had at the time it was made and we know of the plaintiff that he has made complaints about work hour abuse weiss fulness excessive lunch hours people working extra duty jobs when they're on the payroll a chain of evidence issues the failure to record incidents and even the failure of some people to pass an agility test but any chance tense he's making that report to his supervisor it's in the ordinary course of his duties he had payroll responsibilities he had information that that was derived from his particular knowledge arising out of his job duties these were made up the chain of command in the fifth circuit has as have other circuits that when you're making complaints up the chain of command there is no first amendment protection of vailable well that's not what the supreme court has said the supreme court has said that you need it just because it's not external speech doesn't mean it's not protected you can arrange to meet with your employer in error all these grievances up the chain of command he still have to look at whether it's part of the job or not so at the chain is not it's not completely dispositive but these were made up the chain of command and it is a factor to be considered in addition to that we know that you look at what his job responsibilities were we look at what his job description was we look at things such as his special knowledge that he would have acquired in the position that he was in and all of those mitigate toward them not being first amendment protected speech this court has recognized that a police department which would apply to a sheriff's department is in the nature of a paramilitary organization and that maintaining that in maintaining public safety they're giving more latitude in their decisions in fact in yola the court recently more recently said that they were given wide latitude but his speech chair owed its existence to his professional responsibilities and when you take all of that into consideration does not overcome or cause it to be protected first amendment speech the fact that it concerned corruption also is not  this current again in the gibson vs kilpatrick case noted that the speech dealt with public corruption but said it does not change the result of our cities rule is a broad one so with regard to that even when you look back at gaar seti the court said while exposing governmental in efficiency and misconduct is a matter of considerable significance though other legislative and not meant to address this particularly the whistleblower claim or other claims under the labor laws in two thousand and seven this court in williams versus dallas i seven said that even a speech is of great social importance it is not protected by a first amendment if it's made pursuant to official duties i would also point out that in the law enforcement context in wilson vs tread ay in two thousand and fifteen where a deputy reported illegal recording inside an interrogation room and who suffered discipline as a result the court said as a law enforcement official other avenues where he could make a whistleblower report but he did not do that he's instead has pursued a first amendment cause of action and he is not and cannot be successful in his first amendment cause of action because the internal speech was consistent with unprotected speech because it was all made as part of his job duties and job responsibilities with regard to the x tunnel speech again there's not one that the individual had knowledge and he pled the basis for that knowledge was that he had been told by another judge that the person whom he was bringing the retaliation charge against was aware of his external speech and had acted on that to try to keep him from getting the job that is not the situation that we have him there's not one fa pled that sheriff woods knew about any of the external speech with regard to the issue of qualified immunity we know this court in gibson and other cases has said the courts struggle with determining when an employee speech was made as a citizen or as a matter of public concern and we know that in ghar said he it's been well recognized that the supreme court declined to articulate a comprehensive framework in which to determine when a public employee is speaking as a citizen a couple of years ago the fist circuit in how versus town of bio in which a police officer was assisting in an f b i investigation of the police department granted qualified immunity citing the fact that the lack of application of gaar setit to facts to those in this case combine with the clarification in the lane vs frights case compels the decision that the defendant did not violate clearly established law the district court said that there is not any clearly established law which is regard to pleading a first amendment claim is similarly a factual inadequacy as to qualified immunity and we raised the qualified immunity the appellant was allowed the opportunity to a man and still did not address that but with regard to the sheriff also on the issue of qualified immunity if there is no underlying constitutional violation there can be no conflict there cannot be a finding against him that he violated the constitution with regard to the whether or not own qualified immunity his actions were objectively reasonable  light of clearly established law we're simply pointing out that the law would not be clearly established for him to know the parameters of what exact conduct was prohibited particularly with regard to the internal speech with regard to the official capacity claims on which the court granted the motion to dismiss we believe the appellants have confused official duties with official capacity lawsuits and in this particular circumstance the official capacity claim made here is duplicative of the one that's already been made against jefferson county and therefore on that basis alone the district court was correct and dismissing any official capacity claims against sheriff woods finally with regard to the issue of policy and custom the courts have uniformly held that where there is no constitutional violation by an employee the employer cannot be held liable  vicarious liability and that isolated instances of unconstitutional actions by government employees will almost never trigger law bill t but they may show a pattern of similar incidents that the plaintiffs pled to other instances where there might have been some similar conduct under various holdings that would be insufficient to show a pattern or practice of similar incidents and we would say that there is certainly not pled sufficient evidence of a kind of existing permanent and well settled policy of discriminating against regardless of and the mr broussard has pled that there was a court room incident which resulted in lawsuits involving mr bruce saud which resulted in lawsuits against the county they resulted in him being a found to have validated policies of the jefferson county sheriff's department he was issued disciplined by the internal affairs board and then sheriff woods caused him to have a suspension for which he had an appeal to the citizen's review committee he decided to not pursue that but that same conduct for which would suspended him automatically resulted in mr broussard being indicted by a grand jury so we have that is no facts whatsoever connecting him to any extra onal speech any knowledge of any external speech by sheriff woods and there is therefore the court properly you judge me please the court let me quickly go into the conduct issue now these charges one fact retaliate so apparently sure of words knew that there was something retaliate against because ultimately these charges in and of themselves were dismissed they were found to be without merit these charges that are that are being discussed here and in the me mind of this court that the pleading stage we're not at at the stage where any of these defenses have been otherwise probably was or whether there was an internal discipline is that right that's correct and that none other than sheriff once he's the one that initiated this investigation that further goes to show that there was retaliation in place now where you dress the timing of external speech what was the closest  instance of extra a speech before his determination or before he and judge from what i understand it was sometime in two thousand and thirteen but i think it's important to note that the trial court didn't even address that in fact they well i'm asking you to dress shirt now in this instance  the most recent speech was two thousand and thirteen but for all purposes in the trial court went on to say that we're not addressing this because the timeliness is there as it pertains to the employment action so the retaliation and  first amendment claims were in fact tommy which is all we are pleading here today now go and looking at this meeting if we look at paragraph thirty three of the pleading brossard prior to number thirty three percent of reporting this to  told sergeant decided that he should think about his options this goes back to what i was discussing before you've made a career here do you lose your benefits or do you go ahead and in walk away well he decided to walk away that's a pretty tough choice and takes this exact set of facts and lays out what the trial court should have done but didn't do because they erred in their ruling so what mr calvert says about anderson if that pleadings there were different because the of the of the case and that we needed to marshal all our evidence in the form of a pleading which is not required by andersen or gaar seti so you can't go in to all the facts at this stage and again the standard in anderson which is the case the correctness of the plaintiff version of the facts should not be considered a complaint does not need detailed factual allegations and again that's clearly stated in andersen now i heard a lot of discrediting of the claims a lot of slippery slope again this is a simple difference between addressing payroll because that's part of your job function and addressing corruption those are two distinct things and my client can always be a private  under the constitution i see that i've run out of time and thank you for your consideration thank you mr canard in your your case i'm sure mission