please the court my name is john judge i represent ron ahead tomar at the time of the events in this case he was a sixty three year old white male republican lawyer who suddenly found himself in the role as a plaintiff in a race discrimination age retaliation due process and public employee whistleblower case we don't see that said the demographics very often in our little employment law practice but that's what we have in this case now as a preliminary comment i want to draw your attention to the fact that you've got four elected officials testifying in this case three county commissioners and one county judge all of those officials are authorized to speak on behalf of the governmental entity that they were elected to govern there is no higher authority in american than the authority of an elected official to speak on behalf of his entity i mention that because in the briefing i expect in some of mr mcgee's arguments you're going to hear attempts to discount some of county judge bonds testimony and i remind you now and as many times as i get the to judge bond as the chief executive officer of the defendant everything he said was a judicial admission on behalf of the defendant there also judicial admissions made by the three commissioners who are on the opposite side of this fight we've pointed out that they contradict several times in this case but we submit that it's not iraq much explore them a little bit let's suppose that in a city council me it gets heated in one council member says well if you do that to tell the world that it was rightly motivated when there's no evidence that it was is that a judicial mission that's forever binding reports when the county when the official makes that statement under oath it's evidence even though there's nothing is the opinion of that council member and there's no evidence otherwise does if he if he says it under oath in the context of the judicial proceeding yes your honor it's evidence it's evidence a jury gets to consider what type of evidence very sane are you making a direct evidence or even now because i thought your brief argued in the context of the circumstantial case arch of the evidence or circumstantial parts of it are direct but that in your brief i mean there are two different approaches to title seven case one is the direct evidence approach and the other is the burden shifting for circumstantial case and i'm asking are you referencing bonds statements as a direct evidence argument or are you still travelling under circumstantial evidence i'm saying that there are both in this case there's circumstantial evidence that arises for example from the race based governance decisions that bracket of the action in this case the commissioner's attempts to protect an hispanic officeholders position when it was against the best interest of the c the same time treating the department head of the indigent care unit much more favorably fourteen times more favorably than mr  circumstantial evidence yes there in a moment but back to this admission commissioner bomb was asked on what basis do you have the opinion that the discharge of the terminations of this unit was big  because the other three commissioners too are spanish one is african american they take care of their own i mean doesn't that as you put racket the judicial admission he didn't have any that certainly that that was his opinion based on the fact that they were of a different race than he was certainly goes to the weight and credibility to be given that testimony but it's still testimony that a jury is entitle to he disparity comes in the length of time for severance that he got that she got versus what he got of those disparity in the number of years they worked she worked for twenty years yes ma'am you were three so they're not exactly similarly situated on work probably for nineteen years she worked for four times as long as he did she got fourteen times as much severance time as he did but just because someone's a department head doesn't mean they have the same duties as another department head of it's another department the difference in magnitude but the substantial substantive principle remains the same they treated one better than the other fourteen times better terminate this department on x date and because i'm not one to have you service were to give her a few more days in the grand scheme of things that's not exactly how it worked out it was a little more byzantine of the end you could see sandbags dropping and people getting ready for the next reflection which was the kennedy administrator but the first of all the county  judge recommended that she be given how much money are we talking i don't know i don't know either one of their salaries but they're comparable because they're both department heads but say one hundred thousand dollars a year ok assuming she made one hundred ten thousand or hundred thousand she got forty days severance forty forty one day seventy he got three and a dollar number please don't ask me to do arithmetic without a the amount is not nearly so important as the principle if the amount is what controls then we're just reduced to a cash register judge with just justice i don't  when you let us try this case again will put damages to the jury but if he only succeeds on the due process claim he'll get three months wages as his economic damages or she gets compensatory damages and her nine hundred eighty three an attorney fees maybe your home but it but it depends it depends on which claim he recovers and or the elements of damage under the state law was a war plane and the two title seven claims are would be to the jury on questions they would not being limited to the three months he had left on his due process right in the county administrators job now that's a very important concept because it involves whether or not he had a protected property right does this mean i've used ten or fifteen minutes i have five minutes more of my first ok i wasn't paying attention it's the math and it is that's why i didn't even apply to medical school they did he have a part constitutionally protected property right  his job and of course if is if his position were at will no he did not but his position was not it will he was not elected  he was an appointed official appointed to a one year term and now judge owen and i both know a little bit about at will employment and we both know we all know that the key defining feature of an at will employment agreement is that it is of of indefinite duration that's the case you just heard  administrator came about so only because of its inclusion in the budget and the budget says right on its very first line this is for one and their attorney general opinions you can't go in and micromanage the budget during the one year budget cycle hoodooed on terminated from twenty judge vaughn was the appointing official who is distinguished from the commissioners and he may have been able to but i wouldn't i wouldn't give him that authority this afternoon and not not due to the fact that hegan mars position his department was tied to that one year budget no i don't think you could well i've at least read your briefs that way so just hypothetically if judge bond could terminate your client's  employment how could your employer your client have a a property interest in that job well the way you asked the question your honor i don't think he could do it i don't think he could terminate that employment during the term of the budget cycle let's assume for the sake of argument that he could then i'm in trouble principle in contract law i know it's written into the education code when you have financial exigency you can do things that you wouldn't otherwise be able to do but that's certainly not the case here if they had excess john cornyn citing prichard against abbott which is a night sixty one texas supreme court case says it wants salaries of officers and employees are set they may not be reduced outside the regular budget night in two thousand john cornyn says authority determine resources the county has authority to determine the resources it would allocate but it cannot micromanage the county judges decisions as to the use of the allocated resources during the budget term again in two thousand john cornyn says the county officer has implied authority to set the working conditions for his employees then picking up one and he said the same thing in two thousand and five once the budget is adopted in the salaries or sit the commissioners court and here we go judge jones cannot reduce or eliminate the salaries of the employees who work under another elected official and that ties right back into the pritchard an abbott rationale from the supreme court of texas because elected officials have a unique spear of please the court my name's eric mcgee and i represent caldwell county commissioners court commissioner alfredo munoz commissioner and esto margaret gall and commissioner joe rowland the district court in this case properly granted summary judgment in favor of the county and the county officials for the district court properly granted the county and the county officials motion to dismiss as the plaintiff section one thousand maybe three claims that he had not but he did not have a property interest in employment i'd like to go into that one first as those are the where mr judge left off specifically those a g opinions that he is talking about talks about the authority of the budget the budget is set by the county commissioners co duties and responsibilities of each elektra official whether it be your share your county tax collector an assessor the county clerk or the district clerk as mentioned in those various opinions from the a g s office they come to the commissioners court and propose their budget for the year as how they are able to do their duties under texas law specifically most of those duties found in the texas local government to vote for the various elected officials within texas those opinions say the commissioners court at that time cannot go back during the budget year and tell the district clerk or the tax collector an assessor or the sheriff we're going to cut your budget in half and you're not going to be able to fulfill your duties that's not what happened in this case none of those opinions from the attorney general's office are a political in this case but what the reference to terminations what about the reference determination mr judge this round from  that are all of us here is in this particular case is the commissioner's court came out amend the budget and terminate someone in one of the other county officials offices in this case that is not the case here mr meyer the county administrator is not of this fear of authority of the county judge there is nothing in the local government that gives statutory authority to be county judge baan to have a county administrator there is no duties that he is performing he is performing the duties assigned to the commissioner's court the commissioner's court in this case speaks through its official minutes and if you go back and look at the summary judgment evidence the magistrate judge particularly in this case did an excellent job of looking at every piece of evidence and here and what he concluded was that there was a specific outline of how mr hegan meyer became employed first and foremost he was the attorney for the commissioner's chord he was not the county administrator he was the assistant district attorney serving in the civil role providing legal advice to the county court the commissioners court that there is his job description attached to the affidavit of the current at that time county civil attorney and it says that the county court administrator is appointed by the commissioner scored the administrator serves as the chief of staff for various departments that are not headed by an elected official the administrator and his staff oversee the implement the broad policy discretion from the commissioners court it goes on to say that the administrator is the direct manager for the departments reporting to the commissioners court he's not reporting to the county judge these departments report to the commissioners court and interestingly if you go look at  that job description and even cited and his brief i think on page six mr hegan myers brief says his responsibilities include overseeing and implementing that broad policy and managing eight caldwell county departments one of those departments was the indigent health care department those two individuals were not similarly situated he was her manager yes she was a department head but she answered to him specifically in his job description it says that the departments report to the commissioners court and he the county administrator coordinates administrative functions of those department heads by the other elected officials the administrator assist the court  developing policy and directs its implementation and continuing to look to deliver services to the community and it lists the eight departments as he references in his brief but it and i are summary judgment evidence that actually shows you what there is no summary judgment evidence of that what is in the summary judgment evidence is that was not saying during commissioners court it had nothing to do with the county it was part of a fund raising event for the telecom no democratic party he was selling raffle tickets judge bond came back and said why are you selling these raffle tickets he said on behalf of the democratic party we're trying to put a hispanic and every office in the county as the magic m in his report and recommendation said that was just a comment in passing it was a joke in comment it was a straight comment it in no way referenced mr heck of a buyer or any of the other elected county offices we've heard some judge did an amazing job of looking at every single piece of evidence and applying it back to the mr head to mars claims he went three the direct evidence that was cited and their claims also raised in their response to our m s j he went through the end direct evidence analysis he talked about the legitimate nondiscriminatory reason and then he went specifically to that pretext you see where he said that that takes a lot of democratic remark is about that party and that political party and had nothing to do with the counting nor the plaintiff's employment and when the remark was made it didn't further any cause when you look at me the question is whether or not a reason you're to conclude that that the more demonstrated racial animus right in this the cause that the measure judge provided cried in so isn't the measure judge engaging in some way in of the evidence here when he says that that doesn't reflect racial animus if i were to make the comment this could be my goal would have only white marriage will occur would that not reflect an animus except commissioner moderate all cannot hire and would then i mean can you say without weighing the evidence that that doesn't reflect racial animus you can't because you look at all the facts in this case all the summary judgment evidence and that i'm going to another piece of that evidence is another one of the individuals who voted in this decision judge john testified that the decision was based on race except it's the he doesn't support any of that with any evidence that is an opinion that he stated and why wouldn't he be entitled under rule seventy one to provide his way opinion on that when you look at the evidence and look whether there's a discriminatory animists and this case because they have to use ms severe as part of that decision making to show that somehow she was treated better than him that's not the case and i'm not sure that's true you understand that you are you in the measure judge applied that standard but the plaintiff also mentioned that the fourth element of  case is flexible and one of the ways you can meet it is if the circumstances suggest a discriminatory decision in the mention that is brief that wasn't addressed and frankly nobody including  case talked about where there was some comments made to an employee i believe that employee at this time there was an african american and that case one of the other employees had made comments about they had t o treat some ghetto kids or some get something and she said that offended her and then she actually wound up being disciplined for some for some variety of other things and she said that showed discriminatory animus in this court said no it did not case though you look at mr viera that's that the individual that they're saying is being treated differently mr vere is department came to an end as noted they're not the same top of departments they're not similarly situated she actually reports to him she's been on the job for twenty years it's made budget year she's in the indigent health care services the county makes a budgetary decision that they are going to contract out for those services she floats around in various positions until all of those duties are responded to and passed off to see in lockhart and then from there commissioner million euros and commissioner moderate all move to her employment at the end of the month the evidence showed that on may twentieth two thousand and thirteen that's when the commissioners court matt and they moved to end her employment at the end of the month just like they did for mr he they were opposed to judge bond's amendment to that motion to extend her benefits through the end of the fiscal year which would end in september the thirtieth of twenty t facts that we're presented with in this case that's not that's not the only theory they present is the only one the measure judge addressed but their brief also notes that the test is flexible and that the fourth element there are different versions of the fourth already different version except there's nothing on the record that supports that their brief make state general last statements conclusory statements that matter that are not supported by any evidence there's no evidence about when that comment was made here that comment was made in reference to i mean you could you look at it in that says they help the same jobs the evidence the summary judgment evidence showed that they didn't their statements in there that says that caldwell county as i called for all the cauldron of racial tension there's nothing there to support that statement there's nothing to support any of those allegations that there's favoritism boiling over in caldwell county nothing again in the record to support that what the magistrate did do is look at it every claim that was are looked at the evidence submitted by the defendant's looked at his response and looked at all the evidence that supported that his statements were just conclusory in nature they were opinions there's nothing in there that provides any guidance to this where you do go for guidance and hiring and firing individuals if you go to the actual minutes of the commissioner's court that's how it commissioner's court speaks is through its official minutes and if you look back at just the evidence that was submitted the historical facts in this case in two thousand and eleven will show you that commissioner in the us was not even on the commissioner's court he had another year and four months before he was even elected to come on the commissioner's court mr penton meyer claimed that he raised the alleged aviate claim about the subsidizing of the dependent children benefits back in august twenty ninth of two thousand and eleven that's well before he was even the county administrator that's when he was the advisor to the commissioners court then in september on september twenty sixth of two thousand and eleven that's where the minutes show you that the commissioner's court took up the consideration of hiring creating two new positions one was the h r position and one was the county administrator position the evidence will show you that the county administrator was hired and he was confirmed on october the twenty fourth commissioners court all these policy changes that are cited in the briefing that that m argues is part of the show the fear of authority of judge bob and those didn't even come into effect until after he had already been confirmed by the commissioner's court those policies were adopted on november fourteenth of two thousand and eleven and all that policy says is that the county judge will select and appoint the county administrator manager even though the county administrator manager war port both to the commissioners court and to the county judge it there's no policy in there that sets his term of employment for one year there's no type of agreement there is no policy that would allow for his term to run for one year it is just that's it besides that and evidence that referenced earlier concerning his job description those are the only two places where you actually find any discussion of his salary i mean of his employment you asked a question earlier about his salary it actually is in the record of a on a i couldn't remember where it's at it's part of the plaintiff's response to our m s j one of the evidence one of the exhibits to that response shows you what the county budget is when it does the interesting thing about the county budget is when you look at it it will show you the total amount of funds that are for that department and so the actual funds for the county administrator department similar to the indigent health care department is actually a higher the amount than one hundred ten thousand because it allows them if if there's a need to hire staff to pay for supplies and b office equipment and things like that so you look at the next one over where i think it will actually provide a salary and then that will have like the number one up there i think that exhibit is really important with the discussion today in the questions and the reason why i think that exhibit will actually show you that that department is not under the county judge that department is a department all by itself over and the government administration of the commissioners court section of the budget if you go back and found the portion in that budget that actually refers to the county judge it will show you the employees he has in his office that the commissioner's court certainly could not go back in there and say i don't think you need t secretaries or three secretaries are going ministering to the system so we're going to cut your budget this year that's a position that assist him in his official duties as part of the local government code and that is under his sphere of authority but when you look at the way that the budget was adopted and these positions were created and who answers to these positions you will see that it's not that he answers to the county judge he answers on behalf of his eight departments to the commissioners court that's that's what his authority was mr head to my ear and lastly i want to just touch on the portion that talked about the age discrimination claim and i think if you go back and actually look at the analysis done by the magistrate and looked at the evidence that was submitted specifically in our exhibit that showed the number of employees mr hegan mark claimed that he was being discriminated against because he was over the age of forty and he didn't have dependent health care when you look at the actual counting employment there was one hundred thirty six employees over the age of forty and sixteen of those receive that supplement dependent health care under forty years of age there's only seventy one employees and only ten of those perceived that so when the statistics this week the statistical analysis that was done did show that there was more money per person when you broke it up overall but when you actually look at the sheer numbers there's only ten of the seventy one vs sixteen more of those that are entitled to that same benefit about to run out of time here i wanted to just point out that the evidentiary shortfalls that are pointed out by the magistrate those are fatal to mr hanken myers claims they do not show a title seven actual minutes and i couldn't agree more because when commissioner rowland and commissioner madrigal voted against the budget that contained the canny administrators position back in two thousand and eleven they said not one word in opposition to the canny administrators position to the contrary commissioner roland said he wanted more raises for the existing employees and commissioner madrigal said he was opposed to a posting for an h r position that was the only thing they said in opposition to this budget they had not one word of criticism of the county administrators position that was also included in that budget and the next two years that budget came up they voted for it then after they decided to get rid of ron hagen meyer they decided that their reason for getting rid of him the reason that they took to the newspaper was that the county administrator just cost too much money and we've been against it all along well they made that story up after the fact the truth is they weren't opposed to it on grounds of cost before and then when they did do it under made up grounds of cause they said and we're going to take the money and move it over to unit road there was a problem with that unit road didn't need the money unit road didn't ask for the money the county was carrying excess reserves on its books at the time that was judge bond testimony that was not conclusively those were facts judge john also testified to very important facts that the magistrate totally ignored in his careful opinion he totally ignored how much money saved the county doing lawyer work in house he totally ignored the fact that ron hagen meyer could have saved the county one hundred fifty five thousand dollars in realtors fees if he had been allowed to stay on and complete the county's acquisition of the wal mart property that they turned into a justice center magistrate totally ignored those things the magistrate just focused on the evidence that supported the defendant's conclusion judges aren't supposed to do that at summary judgment of the magistrate on critically accepted the defendant was a real estate lawyer in denver for many years and he knew how to do real estate and he knew how to do it efficiently and properly and that's why he was so valuable to that county at that time  now you know he's the equipment salesman technical equipment salesman he's not he's not a lawyer though of the the greg abbott opinion that judge clement asked about is number three twenty two in the break it was decided he would get issued in two thousand and five and i guess the last point i want to make if i have a few more minutes is that the story that the defendants made up is simply unworthy of cretins and the spring court has told us that when a defendant makes up a story that is on worthy of credence that in itself is circumstantial evidence of in the eagle discrimination and we know the reeves case very well because it came right through this court and came right back to this court but you can't believe a word they say about that budgetary reason it's shot full of holes and that in itself is additional circumstantial evidence of being legal discrimination i thank you for your tangent for the more questions i'm happy to answer i thank you