contained in the trial court's decision on summary judgment st the trial court erred in granting summary judgment in favor of the defendant after the plaintiffs claim a violation of its due process rights and bombing both his liberty and property interest as to both claims the court misapprehended the factual record and applied erroneous legal standards secondly the trial court erred by finding conclusively that an ethics violation raised by the plane that was not an issue of public concern there are perhaps two topics that reflect upon the public trust more than the impropriety of municipal employees the motivation for the speech then should have become a question for the jury rd the trial court erred by finding once again conclusively that no inference of retaliatory intent could be drawn from adverse actions taken against mr decease or after his actual size the family medical leave more particularly the court exceeded the scope of its review by flat ignoring any adverse actions which occurred after his family medical leave for the trial court of used its discretion by disallowing a straightforward request to supplement the summary judgment record after by in such items were not included the supplemental records were exchanged during discovery that were long known to the parties that were argued during the hearing and it caused no prejudice or delay finally the court erred in finding move the plaintiffs motion to compel disclosure of communications from defendants labor council as it had been conclusively established that labor council became the human resources person for the town and was primarily responsible for the disciplinary decisions involving the pla view would have struck a perfect balance between honoring the privilege under those circumstances but lifting the privilege should the court have determining the existence of some it was an intent back to the due process in that the plaintiff is entitled to notice of the specific charges against them an explanation of the evidence against them and a meaningful opportunity to contest the court found due process satisfied primarily due to memorandum was never provided to the point that until after he was officially terminated more to do it question about that that pleased so i guess all the parties agree that the district court this understood the order of the sense of that all that know the district court relied on the so called micro questions and i noted that these questions that were in fact is best at eating refer largely to things that had been at the subject of back and forth between your client and farmer krell for release and she began but also since she kept asking him things like providing daily worksheets and received the list at the start of the meeting or the day before that meeting with evidence supporting all of this or that all of this is something that they had been discussing for quite a long time could you point to anything that came as a for issues with regard to time being or keeping track of employees who were taking on paid leave he would never even got a written warning and this union employee not even a written warning and wasn't matching it to the factors of notice of the charge of the against him that could lead to his terminations are i would say that mr deceiver was sitting in a position going into that meeting where he never had noticed prior to the idea that the town was going to utilize timekeeping as a reason for his discharge it certainly wasn't one of that in any material way in terms of written warnings or progressive discipline in fact that morning was the st time he was even ask specific questions about it certainly was that they didn't levy charges if you look at the nature of ms mcclellan's questions and i anticipated that this would come up she gets she's fishing and she's investigating for instance she's asking open ended did you have  discussions with mr santos that's relevant because the nature of the question is investigatory in her hands she had prior to that meeting a statement from mr santos regarding certain items that she was claiming that mr disputer had of violated in terms of town policies but didn't provide it similar to the otero case where the the municipal entity in otero had evidence had speedman had an investigation that they withheld from the proponent and simply said to them you've been gauged in this conduct mr mcchrystal did the same thing here she was making a general statement to him through these question but let me no specific charges it's the withholding of the charges an explanation of evidence which marries this case on all fours with the otero case because the town had clearly done some work which they did they claimed supported this charge the only problem was they wouldn't provide it to mr deceived or an order to give him a fair hearing at that point the very nature of the questions i would urge your honor to consider we're investigatory rather than levying charges which is the in this particular circuit in addition i would also urge the to consider that there were only twenty days of work roughly when mr deceiver returned from f m alle during that period of time he was a long term digit years had served as the in his current position provided a half years without any issues or disciplinary matters whatsoever and he has twenty days in return to work where he's forced into a meeting  without without facing specific charges or an explanation of evidence and it wouldn't have been difficult there was certainly no government interest in withholding the prior investigatory work that they did simply providing it to mr deceiving his or that morning to judgment decision and wasn't a part of the summary judgment record so it is the plaintiff's strong position the appellant strong position that that's off limits for consideration at this point the town took away his car before his return to be a call that he had changed his office from the highway department to the town making his job more difficult a change in working conditions has been recognized as retaliatory  submitted affidavits in particular joe curio so indicated that during the period of his leave in january of two thousand and fifteen the affidavit was in february the highway department had never been run better it's smooth employees are happy it's more efficient the work environment is better they were essentially essentially assassinating his character while he was on leave now he's entitled to reinstatement when he comes back after f e m a leave which indicates or should draw an inference that he's not welcome he's not welcome back by his subordinates and they're communicating this to the top decision makers of the town a more direct inference of discrimination or retaliation can possibly be made the town had no purpose and ms macrae all testified as much she had no business purpose for the affidavits that were sought out from highway department department personnel they were sought out for the specific reason of trashing his character while he was on leave they were i had explained and argued that they were gratuitous in nature because there wasn't a business purpose to them other than to assassinate his character  this matter is simply a case of a new supervisor and corral coming in with a different direction than the previous supervisor in one subordinate mr diffuser chose not to follow that direction time and time again despite being asked to do no more than what was contained in his job description the fourteen month period that mr crow was mr diffuser supervisor is littered with examples that exhibit is poor job performance insubordination inadequate training and his lack of credibility and terminate meeting was held and these are questions and they don't provide or set forth the evidence that the town relied on in the terminations all that all that he received was the april th notice the right to representation letter could you explain why that is adequate notice and adequate notice of the evidence the town would rely on in this terminations yes yes your honor our supreme court has stated that due process is not fixed but it's flexible and calls for such procedural protections as the particular situation demands and this court recently into reverse is smaller stated that no cases established at the requirements of procedures considering this particular situation in the facts of this specific case the course of the firm the district court's decision because the town afforded mr diffuser notice in an opportunity to be heard before he was terminated but all of would use in support of its terminations you're saying that it was enough that it was discussed at determination tearing itself separate that's correct your honor and larger mill does not provide latter before the hearing itself but that they can actually be provided during the hearing and as to so mr diffuser was provided with a memorandum that directed him to report to mrs repros office for the purpose of discussing her intention to terminate his employment and to provide him with an opportunity to explain those his job deficiencies so he went into that meeting into that hearing known full well that they were going to be discussing his job deficiencies  and that it may ultimately lead to his terminations at the hearing he had union representation in the form of a excuse did he know going into that hearing  consistencies already issue yes he did your honor none of the topics were were new to mr deceased or he was he was well aware of each of these topics because miss necro routinely discussed it then with mr defeater she held weekly meetings with mr diffuser from the time that she started as the director of public work constant topics during these meetings included his failure to complete daily work plans his failure to properly and to timely review time seized his failure to perform inspections at the end of each workday and these were all issues that he was alternately terminated for when he returned from his suspension so he was suspended in january of two thousand and fifteen when he returned after taking almost two months of medical leave mr kroll had a meeting with and provided him w work schedule that specifically allotted time each day for him to perform the inspections each day to complete those daily work report to review the time keeping records so he was well aware of what his job deficiencies were so it's disingenuous for mr diffuser now to claim that he had no notice and to feign ignorance as to what the purpose of the hearing was or that he did not know what his perceived job deficiencies work despite his knowledge of each of these topics he chose not to provide mrs mccraw with any information or explanation regarding regarding each of those on job deficiencies the purpose of a letter mill hearing is to serve as an initial check against mistaken decision mr deceiver did not attempt to re but any of the charges against him as it related to his job performance or is insubordination his brief doesn't attempt to rebut any of those job deficiencies in this court has made clear that procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to the termination so long as a full adversarial hearing is provided afterwards which is exactly what we have in this case in this case it is  allow formal classroom evaluations following complaints and student he was that that professor was provided with a letter that indicated that if he didn't let the evaluation occur then he would be subject to discipline he didn't let the evaluation occur and he was provided with a letter notifying him of it suspension because of that conduct that letter also quoted from the collective bargaining agreement and inform then informed the professor that he could c test the suspension through the grievance procedures beginning at step three which was a hearing before the president of the school and the president of the union the president filed degree as a professor i apologize the professor filed the grievance but then did not participate in the hearing and instead filed a lawsuit this court affirmed the district court's granting of summary judgment on the due process claims and in doing so it held that the limited procedural rights guaranteed under the circumstances of  satisfied by the present provision noted in the hearing rights that were provided in the agreement procedures under the collective bargaining agreement again that's exactly what mr diffuser had here he had the opportunity to respond to the charges against him in that letter earlier was that even known earlier part of the discussions i mean the records pretty full of discussions about daily work sheets and so on but i didn't i haven't seen anything about contemporaneous work in north stoningto light i'm having trouble understanding how he was supposed to prepare to defend and he can only be fired for cause and the latter model says you have to have notice of the charges and  the opportunity and knowledge of the evidence ahead of time i'm having difficulty even notwithstanding that they have been talking about many of these issues over time and particularly in contrast to the hearing that you all conducted before is a suspension this one seemed very hurriedly put together and i think some difficulty understanding how he could have defended but i take it your explanation is that he knew enough court has stated that due process requires depends on the circumstances of the particular case and in this particular case mr diffuser was well aware of each of the issues that he was ultimately terminated for and that goes on and keeping records it goes to his failure to perform inspections at the end of each day his failure failure to complete the daily work reports and as far as evidence because he wasn't doing the things that were being requested of him by mrs mcchrystal there was no evidence to provide to him he knew that he wasn't doing them and so whether he had twenty minutes a half hour o and the bottom line is that he wasn't doing what was what mr crowell was asking him to do which resulted in him being terminated for that poor job performance and for that insubordination that continued in lot don't you have ahead of time where they that there were a couple of the davids there were affidavits that were obtained that were not part of his term a nation as far as the affidavit from mr santos that related to work that was on regarding the work that was done on elm ridge road regarding the catch basins and the issues regarding those catch basins mr diffuser provided a written response which is part of the court's record he provided a written response to  goes to his lack of credibility so again there was nothing new that was being discussed that mr crow wanted to discuss with a message louder mill hearing mr defeater took it upon himself not to respond to any of the issues that she was raising so she ultimately terminated terminated him with the information that she had ok thank you i think we have the argument you have two minutes of rebuttal thank your hon what the town of stonington what the appellee has failed to demonstrate at any point during the briefing and certainly during argument is there's no explanation for the town withholding the memo that clearly there's certainly an inference can be drawn that the terminations memorandum which was handed to him a couple hours after the meeting with ms mcrae well it was two pages single spaced was comprehensive in terms of charges it the privilege log certainly indicates that it was drafted earlier then the loudermilk what the defendant appellee has failed to explain is why withhold that document from mr deceiver the purpose of withholding it was to deprive him of his full opportunity to know the charges it meaningfully participate in the hearing as it was pointed out by your honor there was an affidavit regarding elm ridge which was used as a basis for the terminations similar to those written statements that affidavit was not provided to him in effect the town was playing hide the coin on mr deceit or asking him tangentially about it but not providing him as is required by due process with the specific charges and with the evidence that they had against him in terms of that suspension the court should note that when mr de caesar was suspended for only five days and not terminated the town provided him with a detail memorandum of certain charges forty some odd pages of claimed evidence to support the suspension clearly more is at stake with the terminations none of that was provided as your honor pointed out it was a very thin rushed procedure with ms mcchrystal upon his term a nation when the town knew from prior experience how to properly give him notice and an opportunity to participate it's not like the town was ignorant of the that particular aspect i would also point out there's been some talk about a record of time records being an issue ms mccrindle testified in no uncertain terms in her deposition and included in the record that the time issues were not a sufficient basis to terminate mr deceivers employment rather it was the other evidence for which they provided no notice at that hearing which were the major basis for the terminations a timekeeping alone the timekeeping i would also point out was not a part of mr deceives or suspension in january of two thousand and fifteen after a period of leave and then twenty days being back without ever being warned about timekeeping issues it now became to him a terminate  a reason for term an agent also so i'm having a little trouble with why even assuming that it was a technical proficiency notice and even assuming i would answer that your honor by indicating that our circuit number one requires pre death probation notice and an opportunity to be heard unless an exception is triggered there is no exception at issue in this particular case i would agree with your honor that there were robust procedures afterwards after it issued but here's why it's so important and we determination is the right but that's not a part of it that is true but it's not part of the record your honor the is not part of the summary judgment record in the trial court's decision the trial court was called on to determine whether he was deprived of due process prior to the deprivation but i did want to answer this because i think it's an important  just a minute in the practicality that if we would sit there and send it back or a technical due process violation the bottom line is yes zero dollars six cents or  claim in this particular case if he's if he suffered a constitutional deprivation and and a constitutional injury there are damages that flow from that the other important aspect that i just want to make sure  the constitutional claims are not coextensive with this collective bargaining claims he wasn't a party to the union arbitration that's between the union and the town and it was adjudicated outside of his particular power he brought constitutional claim separately which he has a right to do that are not coextensive with the underlying collective bargaining agreement they're separate claims and that's why these are still perfectly presiding the other issue your honor so your position is that  simply entitled to some kind of hearing which is what he got some kind of hearing your honor with respect has been has been determined in otero it's been described some kind of hearing requires notice of the specific charges against you an explanation of the evidence and a meaningful opportunity to participate so while i understand that the defendant has utilized that language he just needs something some kind of hearing that's actually been articulated specifically in this circuit bioterror and i just want to get one point out in response to your honor's previous question when determination occurs prieto pervasion is so important because when the terminations occurs it is an ultimate uphill battle to recover from that you become stigmatized even not just to the public but with you with your coworkers so then a double digit year twelve year employee five and a half years no discipline now becomes fired employee and there's no incentive for his former coworkers to have his back under those circumstances rather they're going to galvanize around the municipality and once that occurs the power dynamic has shifted immensely that's why pre death pervasion is so important and why a post deprivation name clearing hearing simply can never substitute because your chance to head this off has to occur before germination ok i think we have