pleased to represent mr above in this case your own do we have fifteen minutes or twenty you've got fifteen years or five for a battle unless you think it differently that's fine thank you very much just some context facts about the background of this employee she was a registered nurse an option and therefore that's why that's constructive discharge because it does seem like you're contesting the thirty day suspension or the drug test it's really just this immediate psychiatric hospitalization it seems to be that that's really courses and what we're saying is the she was a nurse and i assume that the employer had a rule that anyone this was in a hospital yet anybody working in the hospital could be required to take a drug test on the spot that right or knobbly so and that's really not an issue in this case that's not the part that bothers you know she she consented to the truth to the drug test it's that he didn't take the drug test those didn't take the drug tests as a result of her went what we can to be a forced resignation ok so it seems like that what the district court went off on and was concerned about was whether you had adequately pled that the reason why this choice was presented before call it that was because of concern about drug use and not to prevent her from availing herself of her due process pre term anation hearing rights and so what's your response to that well the concern about drug use is nowhere in the complaint it's simply it's simply a speculative concern is raised by the defendant the district court picked up on that and made important part of that there's nothing in the  mr manning's mind isn't a subject of twelve b six it's a subject for further discovery and development and perhaps a summary judgment perhaps trial i would think so but if i can explain there then the fella case came along in one nine hundred eighty six and said basically well you have to show that the the the the thing that intended for her not to to to have the benefit  that there was this intent to deprive her of an opportunity for pre term a nation here and they argue that's the reason she was presented with the would be doctor i think the audience both i mean he obviously put her between the rock and the whirlpool in my in my view but he also in the complaint also alleges that her any time to talk to anyone of anything to find out what her rights work right the whole the whole context was very coarse of the security guards one of the arguments that his motive for presenting her with these are options was to force her to resign and thereby denying her of an opportunity for pre term anation here let's get that one of your claims or not that's all  alternative was offered to ok well you can go down to the clinic and take the drug school you know you can go to the doctor and thank the gods which is a you got to be hospitalized inpatient for three days or i'm going to terminate you and that's duress prudes of this brain court and this court it's not it's not before the court but even if it was alternatively assuming argument oh it was then our law is quite clear from this this circuit that pre a pre term a nation procedure right case but if they can argue pre term an issue procedural right are you saying that there was a motive to deny her that opportunity is that what you're saying yeah ok so let's but then all of her post termination reason was not timely and i believe this also in my reply brief is that there was no notice given to her of the right to file a civil service appeal from what's considered to be a forced terminations civil service appeal  you're on the can take judicial notice of the you like the civil service appeal has notice of appeal rights for terminations but not for a forced terminations she was given no notice the problem is those state procedures of appeal of the the one of the first cases in this area the law of university of donna sets that law forth and relies on the old classic case of johnson versus searched and it says in order to waive your your your rights you have to look at the record has to show actual knowledge of the existence of the right and understanding of the meeting and a clear comprehension of the consequences of the waiver  test back so if you let's say you have a nurse that you think is on drugs she comes in and she agrees to a drug test is it your contention that what they needed to do was the drug test and a thirty day suspension or whatever but not possible ization was that would have been a reasonable response that you were in accord with so that they have time to get the drug test back see if she in fact was on drugs on and so forth and if she and she would be an immediate threat to the patients because a poll are off the line but you just feel that there's no basis at all for this some basis for at least thinking that something was amiss not whether or not you agree that it was sufficient that he should have ordered some psychiatric evaluation which you're now telling me subsequent to that she apparently had some examination from somebody where these diagnoses were made you know there may have been some basis for it but it is a matter that's a matter of the sense and certainly the thirty day suspension with pay  in the drug screen would have satisfied any legitimate concerns i mean to people get in on terribly hospitalized for attention deficit disorder i mean it's very difficult in voluntarily hospitalized somebody even somebody who's ranting and raving and screaming much less someone who has a very very common situation that you know attention deficit disorder which is a very common diagnosis and people live their lives and function quite fine with in my brief that says a statement may not impose conditions or require they relinquish when the constitutional right many were saying basically you give up your your liberty interest too to determine your own medical care in your own freedom told anything you say might be used against you you have the privilege to refuse to answer questions that you think money criminate you but if you do answer you'll be seventy determination the same sort of course of activity as is indicate that in a poll we can't ignore the process deal extended and later complain that he was not accorded due process this president places an exhaustion of administrative remedies requirement before an employee  assertion with the qualified immunity assertion by defendant plaintiff is required and has the burden to a certain necessary facts that establish that that she can overcome defendant's qualified immunity so point she gets prison all those people have qualified immunity and we say exhausting her harmand remedies is a mystery remedies is an affirmative defense i mean i don't think the fact of qualified what do you have a case that treats this particular affirmative defense as part of what you need to plead satisfying for the qualified immunity defense i don't i don't have a particular case of hand i would just assert that all the qualified immunity cases that require place the burden on plaintiff to assert to assert facts that establish that they can overcome the qualified immunity or assert or assert the constitutional violation that those cases would refer the court to as alleged by plane are that defendant sought to conduct an investigation into possible drug use a plaintiff which threaten the safety the hospital and not a desire to avoid perjury pretty disciplinary hearings but the problem with that is she was going to do the drug test and the thirty day suspension and that would have been enough i would have got her out of the hospital where she could not be a danger to patients it would have answered the question of whether she was on drugs what was the need for the three day psychiatric hospitalization it's defendant's assertion that that that plane it has put in an reasonable inference or burden on herself that she was actually required to do that plaintiff had numerous options that day and one of which was not to participate in the investigation at various levels she she doesn't have to fully participate she could she could she could say hey i'll do the drug test but i'm not going to go to the hospital do with do with me what you will but i'm not going to go at  there had been no discipline at that point according to the allegations of plaintiff she had been placed on thirty days paid suspension and only after she inquired about her other options or terminations or resignation ever mentioned when she asked what what other options do i have other than doing the drug test or go into the hospital that mr manning said well terminations are resignation ok so the point is you're saying she should have agreed to drug test and then said i'm not going to the hospital that's essentially what she said she said what happens if i do that what happens if i refuse to the hospital and she was told well you'll have to resign or be terminated so those are her choices a three day stay in the hospital in a psychiatric hospital resign or be terminated that's it she wasn't given some fourth option at least according to her and i we're only at the complaint stage i know there's probably other facts and so on that's fine it's an unreasonable inference from plaintiff to feel that those were her other options she's a twenty three year civil service employee who knew that she could not be disciplined without written  if mr manning says easier options she should know as a civil service employee with twenty three years experience that he can't do anything to or until it's in the writing it can't do anything to with he in writing so she could have stood her ground that day and said i'm not doing anything what are you going to do about sound like twelve be sexist sounds like a jury argument i could ever it's really amazing to me that we're going to sit around and judge somebody santana and motive in all of this in this very flaky situation as a matter of law argument we should infer that she should have known all this when that's nowhere in the complaint as a reasonable a constitution violation because i felt sukkot worst i only had these two options today no reasonable employer would have known you had more options that day ok then why did mr manning say that if he's a reasonable employee to why did he say well your other option is to go have a three terminations hearing that's not his duty he doesn't have a duty educate her is they have a duty to tell her all her options that day he's going to tell her oh you don't you don't have to do the investigation you can not fully cooperate why would you tell ok so how can anybody ever be constructively discharged then if there's a presume to know all their different options how can they ever be deprived of these remedies i would it i mean i would assume her i'm assuming he's not without written authorization no he has to put it in writing he had the authority to do it but he has he has to put it in writing for her believe fire on the spot if he did then he she has the say she seemed she has the claim that there's been a constructive destroyed my resignation was really a collision and she has to go and claim that how how is anybody else in the in the civil service process to  that's not the standard or burden that's out there us to be deciding on twelve b six which is you know as as matter of law and as you're going to get well again i cite that chief she needs to needs to state that facts elicit facts that that mr manning had motive to prove it well she says that she wasn't given a chance to talk to anybody she wasn't given any time those are things that sound coercive a sound like i'm trying to keep you from finding out what rights you might have ok but you're saying she hasn't played any facts i'm telling you the facts she's play from which we can draw the inference that this this man is trying to either force or into the hospitalization or force your out the door without a chance to reflect and talk to people to do all those things that's what makes it coercive if i give you time to think it's less course of then if i say you better tell me right now that's more coercive that's all i'm saying and the questions she put some facts to support the conclusion and i'm saying those are the facts she would like to i would like to return to the the idea the the exhaust requirement and that that exhaust requirement flows from the principle the  that so that leaves a reasonable evidence that her resignation was voluntary and this honorable court has recognized that civil servants in this circuit has added have adequate post pursue rather than to pursue available the ministry to really listen this list suit presents the same theory and should be dismissed accordingly under her theory any civil service about whether in a qualified immunity context there's a different rule do you have cases or do you know i just do you have a case that address at all that that law sort of impairment tyria where there is no there is nothing that indicates that that we have the burden of this proving an affirmative defense that we have the burden of disproving the fact that they assert that she was unreasonable on the circumstances there's just no law to support his position well you can certainly preach it with a qualified immunity defense you could certainly come fact an argument that would put the burden on your client and i'm not my question is has anybody done that i've not seen i'm not saying i think i would be familiar with the promise but i think it would be so you're not arguing that she didn't know about the louisiana civil commission and the right she had of the commission your argument is just that she didn't have to pursue it ministry and administrative remedies well my two arguments two phone number one the pre term a nation poster nation things are different different constitutional safeguards that the mere fact that the state remedy doesn't doesn't make it sufficient guillard vs home where the supreme court said very clearly that you have a which state remedy you arguing with they're talking about a  civil service appeal host terminations that's what they're saying she should have exhausted give it versus homer says that you're entitled to a comprehensive post so you're saying it would mean an inadequate remedy it is  the state has provided for using you through the civil service commission is just that she didn't know about it not that it nothing wrong with the process of being have set up to afford due process post terminations your only complaint is she didn't know she has to be advised of it and she didn't know about any time limitations or for filing it there was a very short time limitation she didn't comply with because she didn't know about the time limitations normally in a terminations case the  fact the banning refused refused a request for information about civil service rights he demanded an immediate answer he did not give her any time to choose he refused to provide her any reasons for his proposed action against her and he misrepresented to labov that she could be involuntarily committed to a psychiatric hospital now that's information she had before her when she made her decision and that's co