my name is mike a farthing and i'm here for the appellant william this this appeal is fundamentally about three different issues for the court consideration first is can a public school compel a public school teacher who is a devout catholic to collaborate and support planned parenthood in his classroom the second main issue is whether there is a dispute of fact whether mr this was terminated for performance or whether for those reasons for his terminations or pretextual nature and he was actually qualified for employment we contend that the district court ignored vast factual evidence on the record to get a clue that he was not qualified for his job and that he was properly terminated for cause issue your honour's is whether qualified immunity protects individual defendants who terminate an employee for their religious beliefs in their advocacy outside of the classroom for their beliefs where this case is not about your honour's is anything that mr dysart tried to do in the classroom to impose his beliefs on others it's not about what he tried to do to this teen outreach program presenters it's not about what he did to planned parenthood or its employees this case is about him trying to be protected trying to be accommodated based on his faith and trying to be free from discrimination based on his religious transcript testimony of his attorney sharon nelson who attended one of the meetings involved between him her and three different school administrators of course by the time people were deposed it was long after the fact so i think what you're saying i want to make sure i understand that your contention is that the deposition blurbs that you're pointing out are are raised an issue of fact about whether their request for a combination was made in the earlier meeting is that right correct this he requested and the date of the meeting if you could remind me i have this not be associated with that entity which he as a matter of his devout catholic faith believed was inherently evil his genuine religious belief is he's sinning by being present without being disruptive not not without being disruptive without being excused by the mere association an appearance of support he was directly instructed by the administrators to support him collaborate with planned the chase on this i think your other argument that for me is most problematic meaning the strongest if you could answer that one is that there was a there was a flyer that was sent home to parents that indicated or now gave notice that the the the presenters were going to be taking place in his classroom and i think it said with his coordination or something like that if you could give me that you are side right you know the one i mean yes your honor and so my understanding of your strongest argument is that he felt implicated by that what he got notice was that this is going to take place in his classes that that is that actually occurred after the fact your honor and i think bears out what is ritual concern was that by him being in the classroom b being mr disses classroom that is what would lead him to be associated with him appear to support so yes he was might have the chronology wrong that night that fire went out announcing this was going to happen actually went out after the fact  i see all right so maybe i'm not that's not your strongest argument what is your strongest argument that he felt implicated by having them come in and do the enrollment in his classroom based on the the strength of his faith and based on what he believed he would be associated with this great moral evil just by his presence his belief was that that caused him to sin to basically fall short of what he was commanded to do by keeping his his loyalty to his fa and not to appear to contradict that so all he needed to hear your honor because these were his beliefs and these were his practices to avoid these associations was to be accommodated to be excused and so again judged garbus questioned the request accommodation was to not be there that day to be out of his classroom not even to be out of the classroom to be excused for those ten minutes or whatever time and during those ten minutes your client was his job was to take role and so he was really just i'm just trying to get an answer bosses question did your client want to be excused from taking the role he want to stay out of the classroom for up is it for the whole time the plan pair was going to be present it would be whenever he would be affiliated with planned parenthood one was that was that the whole period i would be that there be the first you and that would be part of it also be introducing them that would be bringing them into the classroom that would be sending students out to go to the teen outreach program those are the things that he was trying to avoid that your client had the opportunity to disassociate himself from planned parenthood during that period was he prevented it from this is so that disassociating himself from the people who were there well i think he would actually be affirmatively prevented from doing that your honor th that would be him in the fashion taking a public position about what he believes is of planned parenthood which is not his position in the classroom this isn't about what his speech is in the classroom and he could disassociate himself outside the classroom which he consistently did with his activities but by be in the right just by saying this is a planned parenthood presentation and not mine he could have dissociated himself from from any association with the group not just mind your own not in his mind and not based on his his religious convictions as opposed to misconduct what's your response to that there's ample evidence on the record your honor that he was in fact a fantastic teacher in the reasons for his termination hotly disputed whether she did most of what they say he did in the classroom and interacting with the plant heard employees he disputes what is the evidence in the record at the time of his term in nation he was functioning as a fantastic using your title in any protests with that be inappropriate if you are claiming that you were advocating and representing the school itself yes if but by naming yourself as a school teacher aren't you a filthy ating yourself with the school a yes but that's free speech that's a true fact for them to be presenting right but isn't that implying that the that the school supports the message that you are conveying it could if that's the context and that wasn't the context here to the school to the school administrators it was inappropriate to to convey or to imply that the school supported his position the way that they did it was don't do this at all it wasn't to be careful the context him with his personal knowledge of how the school system worked that was a great what's the point of saying you a school teacher if you are if your goal if you are aiming is to challenge planned parenthood's policies what's the goal the thing usgo teacher in that context personal knowledge of what life is like for high school students what life is like in the classroom and how participation in certain activities from his point of view would have a negative effect on those children's upbringing so that would be the benefit of his personal knowledge i have seen this i have witnessed this in the classroom so it would i think very much be a factor for him to to the life i am when he's advocating for what he believes may please the court counsel produce campbell representing the public schools in the individual defendants this case presents a question whether the school district properly terminated and disciplined mr did this based on a long history of misconduct and disciplinary action sensually beginning in two thousand and six mr mr decide been received letters of reprimand for demeaning students in class he received throughout his throughout his tenure at p p s complaints from parents from students from other teachers about his demeaning conduct and in fact he admitted it in his deposition that he said it's great to demean students for over a decade and then after even after the teen outreach program there was a period like in late two thousand and twelve where he received i believe in a three month period sixteen complaints from teachers or from students and parents so given this long and consistent track record of complaints where he's calling in he's been reprimanded repeatedly for calling students things like bums slackers losers  making references to them ending up on eighty second street which was a suggestion that they would be become prostitutes saying that they would better fill out their cardboard box which is an allusion to being homeless i mean  he was denigrating degrading students for a long time council so his his drugs argument is that there's a mixed question here that there's a genuine issue of fact because it's not all one or the other so what's your strongest argument about about that well i think in the weight of this overwhelming evidence not only from i mean mr just does say he was a great teacher in and we heard today that he but but that's not that's that that's his subjective interpretation is if your argument that no reasonable juror could find that that he was terminated for an improper purpose absolutely ok so tell me about that what's your strongest argument on that point ok so the strongest argument there is that there is no there is no anything beyond a scintilla of evidence that mr just has to show that his religion or religious beliefs played any role in p p s his decision to ultimately terminate his employment and that's and there is so what time period is fair for the jury to consider in your view of this evidence a juror would look at are you going back to two thousand and six up to the date of terminations and when you say that the timeframe to be considered well i think i think you have to look at the the evidence holistically what time period but the reason i think i think the most relevant time period is really probably two thousand and eleven forward but going back to two thousand and six is context in the sense that you have the same complaints and the same steadfast refusal to reading counsel for me on his argument his argument if you go back to two thousand and six there's there are many complaints of this conduct and the school district didn't fire him so his argument is that that actually makes it a stronger showing that that it was this incident we're talking about in september of two thousand and eleven that really was the true motivating factor what is your response to that my response to that is it's it is a very challenging thing to try to fire a public school teacher you have to go through several st yes i my question is it was just represented that that that evaluation was not in fact removed as it should have been is is that correct well your honor i believe it was removed officially from his person my understanding i think it was it was still contained within the district's records and we the reason it was incoming so i'm trying to get at him forgive me for interrupting but i'm trying to get at is he right that the incoming principals have that to review and that that because his argument is that that know it may or may not i don't know i don't know the precise answer to that question but i guess the point is that that's not what she relied on in ultimately recommending disciplinary action after she became principal i mean there were plenty of if you look just in the time period of late two thousand and twelve twenty thirteen standing alone with all of the pair you have multiple requests from parents to get their kids out of her mr just  class he's they're not learning anything they're behind they're falling behind in math i mean so there's a competence issue too but there's also this remaining issue of degrading into meaning students and even after multiple warnings i think the last building like up twelve feet high and he couldn't get out and so it was some more they had to put up a ladder and the student yvonne complained and he felt humiliated and so this this type of counsel from you know me below the record of from your recollection of the record wasn't a request for accommodation made i don't know where there is anything in the record to mr just made a request for accommodation the the people from the district who were there who were present and i believe mr just as counsel were not did not believe that there was a request for accommodation made we have citations in our briefed after the talk presentation i think that there was a meeting and that's so if there was a request for accommodation at that meeting september twenty sixth i think it is then it's not approach for accommodation about tops of copters over with and i'm missing something because those presentations didn't go well that the administration perceived him to be interrupting and that he that he asked to be excused each day what is your response that's not to my knowledge that there was a request to be excuse each day in fact he showed up  he struck to the top presenters and i'd like to back up for just a minute here if i may this is not a planned parenthood program yes i mean this is a federally funded federally sponsored program by the department of health and human the teen outreach program was going to be it is a federal grant that had been given to an on the on the a spectacular cation was going to be implemented by the planned parenthood educators and that when they showed up at his classroom he felt very offended and concerned and that following a federally mandated script not a planned parenthood script so we understand that and and so that's that's part of the difficulty here because he his briefs don't contend otherwise he simply  contending that he has very strong and sincere religious beliefs and when these educators showed up that was news to him and he felt implicated in a way that that defied his religious beliefs and his contention is that he asked to be well i think the record shows that what he did was he created a hub bub and he took twenty minutes and even though he sort of disputes that but he said in his deposition that he might have taken twenty minutes in  fact when the school district personnel and the presenter said he did take twenty minutes i mean so i think there's not really a disputed issue of material fact regarding  of the presentation by taking attendance at a slow pace correct i mean that is you have one side saying that's exactly what happened mr mr just saying well it could have i mean i was very upset if he had very clearly and unequivocally and calmly outside the presence of the students had said i had made the request to be excused because it violated his religious exercise would the school district have been required to find somebody else to take a we and whether his religious beliefs were even implicated with taking attendance that's the difficulty i'm having with the argument whether or not taking attendance and not being part of the classroom and then a federally the top program program comes and they make a presentation and all mr decides to do is to facilitate that by taking attendance he doesn't have to be part of the presentation i think it's a stretch to say that he is somehow being seen as indorsing planned parenthood or an even endorsing the the content of the federally funded program what's the best  honor we have at the tail end of our brief we have a section on the difference between accommodation and religion is defined under federal statute and recombination indeed the duty to accommodate only goes to a custom or practice it doesn't go to a belief and that's there's good reason for that because if you have if a public employer had to accommodate every belief it would go down a rabbit hole of you know you have cases like this in the even worse where any time a a public employee said this is my belief you have to you know you have to excuse me or you you have to take steps to accommodate my belief  it would make it almost impossible for a public employee player to to run a workplace that's a ruling that would be very difficult at summary judgment and i don't think it's when you're relying on i think you're relying on the argument that overall the district had a legitimate  nondiscriminatory reason and that there is not an adequate showing a pretext it's not easy to show rejects a very high burden of proof but i just want to make sure i'm understanding the priority of your argument that's the correct priority because i mean ultimately it doesn't lead you even even the a dation request argument doesn't lead anywhere because you have this mountain of evidence that there were were valid nondiscriminatory reasons for taking disciplinary action t of his position as a teacher so it's not a matter of public concern but even if it were then you get the pickering balancing test and when you have pickering balancing the courts have said it's almost impossible to prove qualified immunity because it's done on a case by case i don't know if you're just a do you dispute that he asked to be excused from being present when these people were presenting their program i would dispute that he th district did not understand that mr disk was asking for an accommodation based on religious grounds yes that we do disappeared do you understand that he was asking to be excused from being present for some reason his mind i believe the record shows that he said he thought sick but he did not it wasn't couched as term in terms of a religious accommodation so he would do we do dispute that but is there anything in the record that says at the time of the presentation he asked to be excuse you're i don't i don't have a clear answer on that your honor but i guess even if even if he'd said i want to go home i can't do this anymore there was nothing to show that that was based on a request for religious accommodation and again even as your honor noted even if that were the case ultimately it didn't lead anywhere because the district had multiple grounds for terminating mr just as employment he was still being criticized for his interactions with planned parenthood understanding now that the top presentations morning done at least hadn't been completed as of the time of the meeting what is your answer to judge garbus this question what what accommodation was requested he requested to be excused from the classroom ok and just as far as going to this being a preference this is not a preference in that this that the discounting of his belief case law doesn't support that belief is not enough either way he expressed his desire to preserve a practice being disassociated not affiliated with planned parenthood miss campbell specifically started targeting mr davis in the two thousand and eleven twelve school year after she reviewed his file she testified she did not have any problems with his performance or behavior for the two thousand and one or two thousand and twelve school year that all changed after his interactions with the teen outreach program planned parenthood presenters all his discipline came after that four out of the five disciplines that they relied upon for his terminations resulted directly from his interactions with the planned parenthood employees and when they're talking about complaint after complaint they reference sixteen complain that are early in their supplemental ex urbs those are complaints not about him those are complaints mainly about being transferred out of another another teacher's classroom is under car bones declaration in the supplement excerpts she says that was the time where a bunch of students were transferred from another teacher's classroom to his so if you read those and not discriminate if that's if they're firing him because of their concerns about his performance teaching that what is your response that flew if that's true your honor those were issues raised as they point out back to two thousand and six two thousand seven where they said don't use this language any stop it was silent on that note for a very long time and they point to a few different examples where maybe he used language that was that they would disagree with but if you read his declaration and if you see the context which you don't get on summary judgment you would expand or stand he wasn't saying that they are bombs they are going to do this there's always the firm but fair discipline of this behavior is inappropriate this is what you need to do that's what was reflected his reviews the firm before fair approach so for them to now say it's all based on demeaning demoralizing students that's not entirely