amendment so no state law claim really no longer part of the case correct ok and then on the st amendment claim that you know tell me what i'm missing about car safety and marshall and those line of cases that i thought the way this worked is you know if it's the school district that's going to be on the hook when people are unhappy say well it's a curriculum that's a good example of you know they're the speech of the school district as opposed to the teacher that you know you can't bring a retaliation claim when the teacher is upset about what they have to teach and it seems like all of your clients complaints are the kinds of things that the school district could be on the hook for and so that i don't think it does you just can't have a phrase involved her union in your brief and nothing in the complaint i mean like that would be a very good kind make i retaliated against because i was either for the union or against the that's that  seems pretty conventional but you just were factually describing something about the fact powder where union was involved in i just don't see how you can use that even though it is the kind of thing that would normally work here but i don't think you used well her complaint isn't against the union in the sense that she had any issue with the union her complaints against the school district wer discrimination retaliation so or it with respect to issues that she brought up regarding the guardian discrimination regarding all the things that we discussed in point union only came into play  reassigned to from being a guidance counselor or teaching english as a nd language to monitoring study hall right brad yang and matt and i want to address that in terms of  don't you have a problem under the supreme court's decision in mows the vs kelly services where it says that the statute that you sued under prescribe is discriminatory discharges but not seven and those involved the federal discussing you know and you know i do you may be right about that and i'm tending to think that probably it was improper for the district court to rely on your failure to exhaust you know your remedies but your problem  to affirm the district court's dismissal this action to clarify your honor there were seven counts in the complaint appellant has all you people three of those counts help one for there was no his view under the guard said he case the ecologic case the evans marshall case we all know that if the speech is pursuant to official duties in the person is not speaking as a public citizen and therefore they can be disciplined here if you look at the allegations in the complaint i think it's very clear and judge su well all the allegations concerning her official duties as a teacher there were duty that were being done in furtherance of her ordinary responsibilities that language is used in the bolton case as well as l versus franks the allegations are that she had concerns about classroom discipline she was rearranging students th upon their skills she was requesting e s l curriculum and materials she spent one hundred and fifty dollars out of her own pocket for books be used in a classroom and how there was an incident with an e s l student that she describes in the complaint for which an investigation had to be done in a parent have to be coordinate you have to meet with that parent but why sway why so complaining about spending one hundred and fifty dollars of your own pocket school district each because it involved using it for books and materials in the classroom your honor but i don't think it's school district speech i mean i understand that well she was complaining to a supervisor at the school this guy suppose if you standing out on a street corner after hours with a sign complaining about it then i think we probably have the distinction they are setting is set forth in this in this case there's no allegation that she complained to anybody other than a school setting to her  supervisor which i submit would be in for her it's over ordinary teacher responsibilities have been some argument there well she was a member of the union and therefore that takes her outside the scope of this public citizen yeah but i mean that you would agree that if you were complaining about the school district didn't respect the union or the school district relied too heavily on the union in other words your direction that's not school speech that would be pretty classic little speech that you could retaliate against that could very well be the case you're here there's no complaint in that regard and which i think supports the truck court's decision  although in the brief there was reference to well because he was a member of the union well again there's no case all sided and there's no facts in the in the complaint that says because you complained there's not even a fact in the complain her graft thirteen was that her incident with the f l student took place which resulted in union representation of busan so the trial court had to accept it as true that she was a member of the did have the opportunity to arbitrate because she raised the issue that you were the union member and no where in the in the complaint that she then in turn plead facts saying that she arbitrator didn't have the opportunity so i think the with regard to the last count roman numeral seven on retaliation which is paragraph sixty six dollars of the complaint it wasn't totally clear on the nec claim what the basis of the retaliation was and i  she and you look at her parents brief on that if you she just says well i've complained in the defendants for sixteen years but there's no detail as to what st amendment free speech complainer you claim you're retaliation for and as we know it's our position that there is no non official st amendment freedom of speech here and she also refers to complaints going back for sixteen years which is also in two thousand and ten there was a prior lawsuit between these parties that was dismissed with prejudice so anything before two thousand and ten should not even be an and the judge i think properly went through the test he said st of all there is no fact allege that you participated in an e o c proceeding or investigation or litigation based on not alleged in the complaint so then the judge went on to assess the opposition alternative and he again found there's no factual allegation that you oppose discriminatory is going to conduct based on age all the facts in a complaint your honor relate to her official class duties as i've already described not her age and then again you get to the issue of no adverse and pointed action if you if you need to get that far she continued to work for the district she didn't suffer a diminished salary or benefits or hours her duties were assigned differently which is the statutory authority of the superintendent and the board of education in these cases so your honor thank you you have no quote for the questions i'm asking that you affirm the district court's decision in all respects clinton what's your response to the discharge  but you know under the circumstances i don't know that it had st climate action may fall under that statute or not the trial court's decision was based soley on the alleged opportunity to arbitrate and again i briefed by any counsel and so forth so i don't know whether that an adverse employment action similar to what the coasters case concrete you know contemplates in terms of a diminished have a woman that has has been a career guidance counselor entire life and she's been demoted to basically being a study you're missing the upshot of my point you have to show it's hans a lot of the statute in which you're seeking relie statute under which you're seeking relief requires a discharge has to be legitimate to expect you to show proof of the discharge but i understand that the court's concerned today what's happened here in terms of an thank you both for your argument consider the case carefully