good morning may it please the court my name is meghan me and i'm here today on behalf of the plaintiff and the appellant in this case duane minnick this is an appeal from a grant of summary judgment by the eastern district of north carolina in mr minix section one thousand nine hundred three claim alleging that he was terminated in violation of his first amendment rights mr minnick is an experience firefighter and emergency medical technician who works for county from april of two thousand and seven through august of two thousand and nine at the time that mr minnick worked for kurt such county fire protection services within that county were provided by various volunteer fire departments including two of the defendants in this case crawford township volunteer fire department and not silent volunteer fire department emergency medical services were provided by paid employees like mr minix at the time however the county was attempting to professionalize the delivery of fire protection services and possibly integrate the two systems there is evidence in the record in this case that that caused tension between the volunteer fire departments and the paid employees some of the paid employees including mr minix were trained firefighters as well as emergency medical technicians or paramedics during his employment mr minnick was satisfactory and his operational abilities record it's clear that there were no complaints about mr minix ability to do his job appeal we believe that there is yet to be a district judge serve some opinion where the judge allows is the evidence on the summary judgment issues with respect to the individuals a written opinion in that regard but now is there anything analysis somewhere in the transcript and all these transcripts of the forecast evidence of yours  terminated reasons unrelated to his allegations related to public safety and so there i think that  that may be the case here there's an awful lot of evidence that this person can't get along with anybody and so he may have been just discharged because he couldn't get along or five different settings but the district court you know made no findings court bonds on this critical area him you have him being given chance after chance after chance you go from lower court heard talk to crawford to caroll to not silence and it never works out in those places and you know for example that that at crawford there was a dispute about the incident with lieutenant hope but then i came across the fact he was calling the volunteers idiots and as a result the fire stations the volunteer two years didn't want to work with him in the the volunteer fire departments were getting having difficulty recruiting getting people to show up because mr minnick was on the scene then and then you have you go over to not follow on and no you use switching shifts with coworkers without obtaining approval the supervisor isn't showing up for work on time and he parked his vehicle right in front of the not silent station and you know that may seem like a little thing that somebody doesn't comply with the the parking rules thing but it's kind of thing that really sets people off when everybody else is complying with the parking rules and is parking behind backs and somebody just whisked his vehicle right up into the front of the station at a place  he's he's not so supposed to be and then he's moving furniture all around when he's told when he's told not to tell him that you can say well that's a small thing but w that was a place where people work one person's parking where they shouldn't be and somebody is moving furniture around when they're told not to then you know that if that upsets people that because it's where they come to work every day and if it was just one place but you look at all these different defendants i mean i've never seen so many defendants in the case and what i thought is gosh is this person can't get along with anybody and i'm not understand the ground on which judge boyle ruled but i've i suspect that's the view that that he had he had about it was that nothing work with people if you work with people you can get a lot done and if you respect the people around you you can get a lot done if you just realize that everybody comes to the t was something valuable to offer and miss but this person didn't approach it this way he was too good fairy body he knew it all and nobody else knew anything and there is a sure fire recipe for not getting a frying done because nothing gets done without cooperation and without people respect me more and realizing that the other person at the table probably has just as much to offer as you do and that our friend probably judge boils basic problem with the case was that it didn't have a thing to do with speech and everything to do with radio personality conflicts that persisted from setting to setting your honor if i may briefly respond to that in this particular case that's a question of fact because the issues that mr minnick had and there's ample evidence of this in the record the issues that mr minnick had with the volunteers were not personality conflicts the issues were mr menocal raising safety concerns that the what was going on in the county and that's why i started with this is extremely important in this case you have to keep in mind that as this was happening the county was trying to professionalize its delivery of services mr minnick came in and he was attempting to found and i am f local which is a labor organization that looks after the interests of pay firefighters he was coming in and he was the face of the new professionalism of this department and so from the get go again as a vocal i a f f member let her rub everybody the wrong way i did it i would but he the defendants separately from her to county ones and then he dealt with scanlon and carter and they are some issues they are in in terms of the way in which he went about them individual differently and i think to to to be able to talk about is this is this you really can it's difficult to just say we're going to just talk about causation in general as opposed to how it relates to each of these defendants i use the word custom and cardstock county michael carter and daniel scanlon in this appeal i think your honors had it exactly right when you were talking about some of the glaring and obvious facts in this case with respect to mr minnick and more importantly with respect to the causation and  when the analysis with respect to the individual defendants is is both important and relevant as well as the facts with respect to the independent individual defendants as well as with respect to what what mr minnick has shown with respect to the county  without wanting to belabor the facts i do think it is critical that the court keep in mind that while i think one of your honors had mentioned mr minnick was fired for not getting along i think the fairer statement would be mr minnick was fired for his multiple failures to follow county disciplinary policies or county county policies and this is department policies such as showing up for work on time mr minnick didn't show up for work on time not once but twice he is an e firefighter he is out in a remote volunteer fire station with one other paramedic the odio this indicates that the via the defendant's district court erred in dismissing new claims because the evidence showed  that there was this custom of discriminating against union members who had engaged in protected speech would that be if the evidence in fact showed that would that be a basis for the one nine hundred eighty three clearly you are not i'm going to let my colleague speak with respect to the claims as against the volunteer defendants but certainly as it concerns county liability or little liability on behalf of mr scanlon or mr carter well there is no added on the other side says that and so far as to the county there that the district court improperly hail that could be liable to terminate because the county manager was not the final policy maker yes ron if in fact he was then would there be a basis your honor i think there wouldn't be because number one the mr minute cannot point to what's absent in these briefs is any evidence directly identifying mr carter or mr scanlon as as violating his constitutional rights and that rises from where well that arises that's in the record your honor there is a musical state law county well with respect to this court has certainly analyzed with respect to the decisions concerning final policy makers and finding individuals as a final policymaker that state law rules and there is very clear  evidence is very clear that mr scanlon followed the personnel policy that was created an employment it or effectuated by the board of commissioners the board that the personnel policy itself has a resolution attached to the back where the board of commissioners is specifically taking responsibility for that document mr scanlon has admitted to record evidence his testimony and his affidavits that at no time did he create such a policy and what mr minnick is what mr mannix counsel trying to do is sort of expand the scope to try to find some way to those can be a little bit trickier but what i don't understand i think it's with your view the case was that it didn't really have anything to do with free speech same personality problems kept cropping up and finally after the fifth chance they said goodbye the not solid experience was the straw that broke the camel's back yes and you can you can affirm a district judge on any basis in the record absolutely and the the the policy in custom stuff is is very tricky and the supreme court hasn't made it entirely clear but when you go through the record it isn't just one thing it's a bunch of undisputed that's exactly right about the disciplinary infractions is i mean i don't know that it was disputed that he called the volunteer fire people idiots and again you know he just looked down his nose at everybody  mean his words you know he was the one and only word about about things in the fire department and if you didn't agree with me ill you didn't have anything to say exactly and that's the you know th problem which the that's what the impression that the record of the whole leaves with that i mean your honor we completely agree that this case rises and falls one hundred percent on causation we think judge boyle recognized that and  with respect to the operative facts on causation i think that you know there's lots of allegations out there about who said what and what he told to various other individuals and some of the volunteer houses what they said to him but as it concerns the county as  concerns chief carter and county manager scanlon it is undisputed in this record that the county followed its progressive discipline policy and what's more important i think for this court to keep in mind this is a first amendment retaliation case mr manic is claiming his n crawford for example the president of the crawford volunteer fire department had been a teamsters union steward for years and the volunteer members were who was the chief of the crawford department inviting the union to join with the department in the fundraising relay and he allowed mr a minute to place union application cards with the spati and you get it you know you get to this is it time after time the members of the management of crawford or union members themselves the whole room he lies with the union they say come over and use the facilities for union meetings they say place your union application cars at the station and you know how those i mean i know we completely agree and that the evidence is even less as against the counties and chief carter and both chief glover a former i f f members and chief carter was actually active retired so this is a this is a county due to its proximity to the virginia state line that has a lot of individuals that used to used to work actually in virginia so a lot of there's a lot of i a f numbers quite frankly in the car it's a county fire and a master party want to get rid of him they would have said you know very to some pretext to get rid of him right after he didn't get along at lower would say goodbye you're out of here but no they didn't do that they said you deserve a second chance and so they let him go to from los heard talk to crawford and then when things didn't work out there  stop the problems multiplied not to free speech problems not the union problems because he was engaged in a union activity at not sol in the records clear on that but what what after all these different chances what happens are their furniture being moved not showing up for work on tom volunteers refusing to come to the station when he's around is parking his or fifth chance warning after warning after warning transfer after transfer after transfer at his request and if this is the reason after the county follows his disciplinary policy and what's more he can't point to anybody else that was that was disciplined for union of benefits or for spring speech actions and normally in these kind of situations a plaintiff has always been able to say look this is happening it happened to so and so it happened to so and so happen to so and so but he can't point to one other person that's exactly the right here on his where he even kind hands the county has taken these retaliatory actions and there were loads of union members in that thing including people that work there worked with minnick it was retaliation ever taken against the union members who work with minnick no it was not that's practice and it goes into the policy making decisions and then he ends it up and saying therefore use failed to demonstrate in necessary involvement in policy making authority here and i know you represent a county here but us is the base and he gave the bases in this order and is fine discussion and it goes on and i've been scratching my head saying we're in a world of as he mentioned any of this right i don't think i don't think you'll you'll you'll find the word he didn't articulate in his order the way i would have liked him to that this is all about causation in the case of crawford in chief daley you said just the right you mean by saying some are just some are just you didn't open his mouth they didn't explain  saying is that you can affirm a district court on an alternate ground if the ground is supported by supposed evidence in the record and you're saying that the evidence in the in the record here is really pretty overwhelming about both the the difficulties if this individual experience the absence of any other individual who was terminated or any kind of union sympathy or speech and the fact that they gave him chance after chance after chance after chance when you read the record and get into the record you saying that there's an alternate basis or harming the judgment below i couldn't have said it better myself that's exactly right the judge didn't need to get into everything he got into as to the crawford defendants there is no evidence of any action that they took against mr manic in any way shape or doesn't trust them in policy stuff don't you think it's while you have some down in your area we have quite a few swamps in this is right in the middle of them it is and there no need to go there because of the causation but even if you go there there's no evidence at all in the record of a custom in policy by the crawford defendants to do anything against union members or people who speak out and exercise their first amendment rights not a scintilla of evidence about that so yeah the judge didn't need to go into that at all causation is what it's all about and there is not as to the crawford you don't disagree with anything that he's saying about that you don't disagree with what the judge said no i don't disagree with you they analyze the basis of the claims the better again i may have written the order differently but i think he got to the right result and for the are some disputed things i mean i think the incident with lieutenant pope that was kind of a fire you know who's at fault there i don't know and you know maybe that that's the kind of a problem but at the end of the day it doesn't matter because there's no evidence that lieutenant po took any action against mr manning because of that there's no evidence that mr manic didn't as he admitted he voluntarily asked for a transfer after that took place the people who made the decision to approve that transfer the county supervisors said are are you've got different pronouncements by different courts going all over the lot well we should undertake rolling that big rock  to the chestnut ridge case where we got the nod on the issue causation that's correct and whether you believe chris pope's version of what happened that day or mr mannix of what they were fighting about it doesn't matter because it had no nobody says it had anything to do with union activity or first amendment speech it was over are we arguing over where the spray paint is so i can mark tires or we arguing over you insulting me by telling i'm telling me i wasn't qualified like your supervisor is at the end of the day that's all you're fighting about and there's done a causation and this record has all of the evidence that was presented in this case it has all of the all the relevant evidence certainly and i think just about all the evidence period that was presented in this case there is factual issues as to causation already and i'm not unless there are questions about the facts with respect my clients i'm not going to belabor that because it it's clear that you know owners have every viewer the record and the depositions on the one of the issues that has been discussed in quite a bit in the questioning which we counseled the court as far as what to do with the the order that judge boyle entered and what should this court do with that in terms of the the most efficient way to to achieve the correct result  the the defendant's brief this is in of the footnote at page thirty seven of our brief there were some cases cited in part but by this court and then also supreme court decision that go to the issue essential of judicial economy that it's more efficient for this  court has been held in the past to review the record and reach the holding even on matters that the court below may not have discussed then to send it back down and go through that same process of having the court do it below specifically the supreme court the s written and it has all of this analysis and it deals with everything in the world i don't see the word causation leaping from it much less giving but maybe that is there to some extent but it looks like even the bases he gave forty four i'm not sure is correct in turns that this standard used for the causation was correct but none of last weekend take the record says we'll just step aside it when you've got to go through that analysis and you really do have to determine well was anything against the unions here that in terms of the allegation here and we take i suppose in summary judgment we take  purposes if not nelson other than i just find it difficult doing that sometimes as an appellate court because we don't do it in every case i think that's pretty clear and i can't sometimes figure out why not why do agreed i think with respect to my clients would not folks there's really there's no evidence that they took anything any action against him first of all that they had no authority to take any disciplinary actions including terminations or any other things all  do was report to mr mannix chain of command with the county but furthermore all the evidence appears to show that they took no negative action against him until the point that he was continued to violate their house rules and endangered safety by parking his vehicle  in front of the baby door which had there been an emergency call during the the hours that his vehicle was parked there that would not have been able to get the emergency equipment out to tend to the calls and so that was the basis for complaining about him at the time when him to come in the first place but why chief an offer was sued when all the evidence shows that and after the never backwards to help him do things that other people didn't want to do is beyond me but if you understand the question about the facts th capable of taking in kind of adverse action your honor in the evidence in this particular case the allegations that mr minnick has raised against the volunteer fire departments and the individual defendants is that correct the defendant individual defendants that were associated with the volunteer fire departments they could not terminate mr minnick however what is clear from the evidence on the record in this case is that one chief carter as  counsel just stated he did inform mr van akker for example that the mr minnick was coming and in fact the evidence indicates that if the volunteer fire department had said no we don't want the guy he would not have been transfer that station additionally the evidence indicates is that there was back and forth between the volunteers and the dozen that happened all where were the immediate supervisor  makes new recommendations to someone higher up the chain i mean this is a thousand times a day in every in every company in the united states where someone's immediate boss makes  recommendation and that but that they themselves were absolutely incapable of taking any adverse action but what's wrong with them simply call the usually in and sent a letter to the county officials the department would have taken no action against mr minnick the department was unaware and tell mr king made this request in which he said i want this person to be terminated and then testified during deposition that it they are willing to give him a chance but the contract says that they will do that the fact remains that in this case with respect to the issue of causation there's a question of fact about whether mr mi evidence of there as anyone who was anyone other than mr minnick who was raising the union who he was the president of the local and there's no evidence that anyone else was raising the safety issues with the same level of activity that he park his car but others also parked their car there that would not have prevented an emergency response based on the information in the record that comply with the parking the at the time he was in  possibility of an emergency it is new important to be it work on time so you can respond to emergencies bowser suppose the fire alarm had gone or when he was not  is the fact is there are other people that were late frankly there's evidence in the record that there were other people who were late a lot more often than mr minnick was but they are still employed by the department they didn't engage in the type of any other person it's been given away from his home so he wanted to move to a location that was closer to where his wanted to move from the i'm sorry are we going to move because he had been verbally there had been a verbal incident with mr pope that the thing that you have to remember is that mr minnick as a firefighter the expectation was that he would respond to fire emergencies he needed to trust the individuals that he was working with so he again he did agree and acquiesce to move but at the same time after the incident with mr pope which the department ratified by saying you know this is not our problem there's nothing we can do about this gentleman behaving in unprofessionally on an emergency scene the didn't really those it could probably bigger i don't know i mean you need to represent to me as to whether this is all the evidence because when we get in the business of going back to determine causation to do it right you got to go back through this whole r however what you are getting into on causation is still a question of fact and a characterization again of the facts in this case does not measure and back if there are no facts in it that no two against it if all the evidence is pointing  i'm trying to say and and but to for us to do it i want to make sure we got out evidence here and i'm not necessarily interested another two thousand pages to read but if it exists somewhere i'm not sure we are equipped to do that i don't believe that it would be appropriate for you to look into the issue of causation because as you've got to be programmed for us to i know get to the lower court didn't get into it it's a factual inquiry that a jury needs to which was whether there was some other person involved whether he was given four or five chances whether he showed up for work on time whether he was parking in the right place the furniture all of these things they're not disputed that's that's the point you're you you're answers were well there were other people well i don't know who those other people were there were never no you know they weren't in the brief is that oil there were other people there were other people but i f it wasn't disputed that he had four or five chances it wasn't disputed that no other individual comparison was brought forward you have a burden of they weren't dismissed but instead what we got is some they owe their other people and and these infractions they aren't the spirit that he didn't show up for work on time twice and he was parking in the wrong spot and he was moving furniture around without permission he was changing shifts without permission and this is after a long period where they go along with him and say we'll give you a chance after chance after chance and you want to get into all of this different stuff which is is murky to say the least when they're under spirited issues of fact no undisputed matters of fact on the points that you and i have been over the summer i don't believe that there are those if matters of fact are undisputed if i may briefly respond and no amount of time by for example again you've asked me just is there a comparative or no there's not mr minnick was the the start we've been over the fact that the crawford part of the crawford president was a former union steward we've been over the fact that the union authorization cards were placed in the fireplace were placed in the firehouse with the encouragement of the police the permission with management that relays were held at union organizations were meeting in the firehouse but there were no union activities not alan according to his partner sir with respect to the other unions that were involved again this is why i started out discussing the context of this case which is the i a f f union which is not a teamsters union which is not any of these an f o p union the i am union was a specific union designed to assist firefighters and so the bringing in an i a f f union versus any other kind of union  on the position of dealing with the medicine judge books and write the raises undisputed facts and from your perspective what needs to rise from the wreckage is something to show that other us faced the same situation but were not treated in the same way well there's some pretextual indication here that well these things existed but here's the real reason and you pointed out quite clear at least enough to survive summary judgment and that's the you know it seems to me that's the approach i don't think i can tell you right now you're not going to witness it being argumentative on the points raised with the judge well because because he is going to write direction on it but if you want to point out that this  did all been sued for very specific actions chief daily as if with respect to crawford he was the face of crawford and he ratified the actions of lieutenant polk which resulted in mr minnick being transferred away from crawford down to corolla which was two hours away from his home mr van all the car to believe that everybody's malevolent the city manager is malevolent the county level and the the fire chief is malevolent the the  manic was doing was trying to bring about a change to change to the way that business had been done in currituck county for decades and by raising the safety issues bringing in the i a f that he was what about certain things to change their way of life  of whole lot more what happens is when you is when you say to somebody rather than calling him an idiot saying you know you're doing some things that are really great here and i've got a little suggestion  and this might help out what do you think and you earn people's trust by showing up to work on time and not thinking you're too good for the roots and you compliment people on what they're doing right and not just on the fact that they're not doing things the way you think they should be done it's the it's called basic hatched and consideration of people who are after the same thing you are put it any right we've been over and over and over it and i'm going to if my colleagues have some questions that that's fine they have they don't have a red light in front of them