it please the court members of the court the supreme court in loving versus virginia so that marriage is one of the most fundamental most basic rights of man fundamental to our very existence custodian because his wife gave a speech to the school board advocating the sharing of superintendents and the cutting of administrative expenses including several principals he contends that in the days don't quite understand that they've laid off somebody was that a part time custodian was that person one of those working outside now they were needed somebody to cover that time frame because it had  that absolutely and the record shows that absolutely the record shows that there were more qualified historian by the name of todd mowen who had previously done the job the outdoor job in fact he was the filling custodian  for that position had done the landscaping the lawn mowing the off the entire outdoor job there's risk all skeered not my question of the courts can't regulate how businesses run their businesses and tell me why i mean we we're not going to tell an employer who they're going to put in certain positions and what time of day so what what is it that would require what it is in this case is that there's a lot more than just the fact that mr skull ski was not qualified for the position for the outdoor position and that there was a more qualified person for that position i realize  that there is room in the law for for businesses to be able to make legitimate business decisions as to who to put into a prison into a particular position and that the courts don't want to interfere with that the course don't want to become the personnel directors for the states involved but there's a lot more to this case than that specific kind of a determination in this case mr skull ski was so clearly unqualified for the allergy which they were aware of which would allow require him in this position to work outdoors on loan for long periods of time where he would not have the protection of other people who could help him in the event that he suffered a bee sting allergy and so because of that fact because of the fact that the other six custodians that they had to choose from were not suffering from this allergy  made him less qualified than those people certainly the least qualified it made the most sense from a stamp from a humanitarian standpoint but also from a business standpoint to have him stay in the indoor position the superintendent of schools did not like the speech given by mr skull ski he was opposed to the to the concepts but he was advocating which was basically the elimination of his job as superintendent of schools and the cutback of principals under his jurisdiction at the same time mr brooks the superintendent of schools was in the process of setting up his own corporation to provide those kinds of services now the school district the school board when they heard the allegations or heard the suggestions i should say from this the skull ski on sharing of a superintendent became very interested in those proposals proposals which the superintendent opposed and which threatened his new contract provision they became very interested in actually voted to investigate it that night in the and there is testimony in the record page two hundred to the appendix where the school board chair actually called for five other districts to find out about sharing of superintendents and what that would do in terms of being able to save money for the district so the superintendents job was threatened by the by the speech that was given by this be the by mr skull ski the wife of the custodian so there's motive there there's a reason why he would be upset about that particular speech that she gave there's also evidence of hostility on the part of the  superintendent towards miscalls he and her ideas when is there any evidence i mean that that's all a given at this stage of the case but what who made the decision to change the  his supervisor mr messer told him well dan and i have already checked that out and that's in the record so there's testimony that mr the superintendent was actively involved in the decision to further than that your honor and we say that it's not required under the mt healthy test which is the test that's used for determining whether there's a retaliatory discharge it's not required that there be that specific evidence presented it's presumed from the meeting of the requirements of the mount healthy test there's three requirements one is that you engage in protected activity and healthy then the fact  thompson didn't talk about it in terms of first amendment freedom of association rights thompson talked about it in terms of first amendment free speech rights and where the husband was trying to the right were wrong or not it's that this kind of a claim is perfectly permissible but what happened was in thompson they pursued the wrong theory in thompson they tried they had the husband tried to say i'm going to assert the wife's first amendment rights that's not what happened in this case the problem i have is that you know if if the wife or the employee in the retaliated against her will be much cleaner absolutely but here you've got a second the second step removed  and i think that makes it hard causation a little harder that is rude it makes a causation harder to prove unless you apply the most healthy test and follow through on what the requirements are undermount healthy which is simply that we have a protected activity which is the marriage we have adverse employment action which is a constructive discharge and we have the substantial or motivating factor that is what is what is the connection to the marri to as woman would ask something about this but how how does it interfere i'm having trouble saying there's a connection there that they were trying to interfere with their marriage well the problem is that there's there's only one custodian who works under him who he has authority over and that's where you get into the retaliatory discharge cases in first amendment freedom of association cases that's just where that that's the way in which that arises if you look at the  scase if you look at the other case if you look at the adkins case the second circuit in the sixth circuit that's where those cases come down and say yes you can have retaliatory just charge cases based on the conduct or the situation or actions of the spouse that's also true by the way under the minnesota human rights act which we haven't even touched on but is in the in the brief is that you can't fire someone in minnesota or take adverse employment action in minnesota because of the identity situation or actions of the spouse things are provided in mount healthy and where he lived the substantial or motivating factor by getting into factual disputes there were specific factual disputes if i could i'd like to reserve the balance of my time  i think what the court needs to understand in order to properly decide this case and properly deciding this case is affirming summary judgment is that there is no genuine issue of material fact as this court knows whether we're dealing with a section one thousand nine hundred three claim under the mt healthy test or whether we're dealing with a minnesota human rights claim or title seven claim the law requires some link between the adverse employment action and the employer's legally impermissible motives so it matters not whether we phrase it in terms of substantial or motivating factor or whether as the minnesota supreme court has referred to it in the minnesota human rights context the circumstances of the adverse employment action must justify a conclusion that there's been unlawful discrimination there has to be a link that link is not present here it's not present because the actual decision to move mr scott job assignment took place before the april nineteenth board meeting ever happened i can't point your honour's to an exact date because an exact date isn't in the record but we know that that discussion took place and it's on appendix page actually one forty nine which is the board minutes from april twenty first which talk about these budget cuts budget decisions considerations about cutting back staff and programs already being given to superintendent brooks way back in the prior december but then we also have mr brooks is own testimony in mr masters own testimony that they had a discussion about what to do is custodians before april nineteenth and the preliminary plan was we're going to move mr scott work outside one school's out once june happens i would like to address your point is that no matter how retaliatory these superintendents name again brooks matter how retaliatory and evil minded his decision was  five reasons for why summary judgment was improper here we've heard about i think two of them today if i kept count accurately two or three the first is well mr brooks said this motivation to punish the scales keys and in particular appellant in your honor picked up on that but the truth of the matter is and what they ignore brooks testified at his deposition that he was eligible for retirement even if the board decided to terminate his services in the court can find this testimony and appendix page forty seven deposition page sixty two lines nine through sixteen now that you have to accept it if there yes it was not subjected to vigorous cross examination and it was not you know  coming into court and sam well we'll see if somebody wants to believe him if that testimony isn't challenge with other contrary evidence or with some vigorous cross examination which gives the jury a reason to question the truth behind that testimony a plaintiff can't avoid summary judgment just simply by arguing that credibility issues exist if that is allowed to occur your honor we've turned back the clock and we've gone back to the priest teletext days where the defense can only win a motion for s comes in with evidence that completely obliterates and makes the plaintiff's claims impossible and that's not the defendant's burden and summary judgment that's brooks testified as the conversation he was having with another and there is no record evidence to the contrary where brooks says deciding i'm really bent out of shape with what misc else he said i'm going to go off to get someone you see where they're trying to take this case is they're trying to take this into the waters of adkins versus board of education that case is very different on its facts because an abcess the superintendent there told the plaintiff he didn't rehire her because he couldn't fire her husband and this was the next best thing and of course there was a genuine issue of material fact about who said what and whether he really said that we don't have those kind of circumstances here your honor what we have is undisputed record evidence that the appellant just doesn't like and so he says well believe it if you want to but it's a jury question and then doesn't offer any alternative evidence i'd like to in that regard talk about this time being more qualified as a custodial worker there are three discreet pages of the appendix that the  relies on to support that position the first is appendix page two thirty five that's testimony from the union steward jim parole and on page twenty one of his deposition testimony line twenty and this is a quote jim describes todd as just another custodian here that's what they offer to support that there's a genuine issue of fact appendix page two forty this is testimony from al vendrell he's the custodial worker who was was let go and he says he doesn't know what other christo the ins did at the school from three to four pm until ten thirty pm the hours that mr scales he would be working so really vendor has nothing to say we're by one could look at the decision to put mr scales side and say he's not the most qualified person then we have appendix page two thirty two john messrs testimony all we know from that is that appellant previously spent ninety five percent of his time indoors doesn't say he doesn't know how to start a lot more doesn't say he doesn't know how to perform outdoor work and indeed part of messrs testimony which is also undisputed that appellant isn't telling this court about today's jon lester said when i decide how to reassign people and who is best for a task i don't just look at who they are but i look at how they get along with other people there's a whole mix of factors and that's why judge reilly i think that the court hit on a very important point this morning about we don't want to turn federal courts into glorified personal directors who step into a business and tell a business how to run a shop that's not what one thousand nine hundred three does that's not what the minnesota human rights act does another curious point that i didn't hear a lot about but it does dovetail with this whole animosity for the skoll skis is this sort of e mails this is another item that is relied upon by the appellant to say that there are genuine issues of material fact there apparently after the april fourteenth or april one thousand board meeting there is a set e mails that went back and forth in the school between mr brooks and a few others mr brooks wants to know who was that lady that spoke at the board meeting back in the nineteen and has to read those e mails very carefully because the very last page of those e mail shows how the string got started was randy olson a reporter with the stock rapids herald newspaper he thought mr schell skee speech was interesting too he wanted to be able to refer to her in his article and so he asked mr brooks hey who was that person that spoke brooks forwards the e mails through the office does anybody know who this was and that's the extent of it what a problem once the court to believe is that these e mails are a vendetta to go after the skees now because brooks is somehow upset over mrs proposals and one just cannot fairly get that out of those e mails there is no genuine issue of material fact we didn't hear a lot about it but for the sake of clarity i'll say something about this notion that the school district didn't save any money by this reassignment will indirectly did mr vander lost his job in the same amount of work remained  one last point i want to touch on before leaving this topic is the school district knew that mr scalzi could die if he had to do this a sign i mean that's really the way they dress it up but what the record evidence actually shows is that mr went to master and brooks said i have an allergy didn't say it was life threatening didn't say he could die didn't say anything about that he even went to a doctor dr haig i think it was on may fifth and says i need a letter saying i have a bee sting allergy and says to him do you want a letter that says you can't do the job and mr schell skee says well no i don't want that i just need a letter that says i have an allergy so all the  scales he was going to be real scientists he has an allergy it's a big difference between having an allergy and having a life threatening one and what the appellant is doing is they're taking their expert who wrote a report for purposes of litigation not about mr scales he personally but about people generally so that these an awful lactic reactions can cause death in some people at some times and now they're trying to say that well the school district should have known all of that that i mean that the condition is real but it's one that he lived with and he dealt with on the record evidence even shows that he coached his own son's baseball and they weren't playing in the metrodome so for all these reasons i think one can sum up the go tell it to a jury that's not a way to create a genuine issue of material fact i do want to say something about this constructive discharge business in the time that we have left as the court is aware constructive discharge happens when the employer intentionally creates a set of objectively intolerable circumstances that leave a reasonable person not a hyper sensitive employee with no option but to quit in here we don't have those circumstances either there's another bit of testimony the appellant doesn't address and it's unfortunate david i think i think was the business manager for the union he on behalf of the appellant went and about having mr scalzi fill this position anyway he thought that if given some time some sort of a deal could be worked out of course these conversations were happening if i may refer to my timeline roughly around may fifth not a lot of time between then and the time mr scalzi decides to quit on the twenty third mind you this assignment this reassignment hasn't even taken place yet it won't take effect until june so this is hardly a situation where we have constructive discharge and if there's no constructive discharge there can't be any adverse employment action either not a lot has been said by the appellant the smarting about the direct claims against the tortious interference claims against brooks and messer there the theory is that these gentlemen are acting outside the course and scope of their employment they're acting for personal reasons and therefore subjected to personal liability but that is defeated by appendix page one forty nine which shows with these budget cuts and changes in staff in hours they were doing exactly what they were supposed to do within the course and scope of their employment so that claim just goes by the wayside unless the court has other questions as i would guess mr warner will mention this rebuttal so i'll give you a chance to talk about it now he says it is required brief the school district is at odds with the district court when it contends that the timing of the decision to reassign was made before the speech by this classic the court held that this timing was an disputed issue of fact district court thought it was an issue if i made the district court thought it was an issue of fact what struck me by that statement your honor was the district court did not call it a genuine issue of material fact thank you thank you that what goes to the board or decisions that are recommended but the decisions and i think there's a that stage in the movie occurred before the statement but i think it what it does though you're either with the fact that the school board resolution is the one that tells the school board or skull tells the administration what to do that is that resolution occurs on the twenty first of april which is after the fact of these of when these things took place so the argument of whether you know this happened before or happened afterwards is an argument that shouldn't be resolved on appeal when there's evidence that in fact there is a controversy over when that took place if you challenge mr brooks testimony dealing with when you have that testimony is the testimony of interested witnesses people who have been sued who it is in their best interest to testify to those kinds of things and the jury isn't required to accept that testimony when it's from first one to bring it up but they made the decision before april nineteenth i think the testimony right or the fact that the court found that to be a disputed issue of fact is important and the court was relying upon the have certainly looked at the april twenty first resolution when the april twenty first resolution specifies and tells the administration that that's the time that it's needs to start making these budget cuts and putting into effect these  these budget cuts with respect to the other genuine issues of material fact though you have to look at the entire record and look at you know why is it that this decision is being made and does it make any sense for the administration in particular to continue on with this decision after clearly being advised of the of the issues that were concerning mr skull ski in the in the and the beast in elegy and all the rest why does the school district continue why does the superintendent continue with that kind of conduct when it's clear that this is there are other alternatives other more sensible alternatives other alternatives that are basically understand a thing or things that have on your brief very interesting you not only on the merits but the phraseology the defense never grows wings and takes flight again about the district the district skirted the issue as if it were a field of landmines some of our briefs are very almost boring think the outcome i don't know but it's always interesting to read something that sounds like want to call angry so i don't know if you know mr i do know the story which is a compliment my my i read a book called point made and