of the two cases are being heard in tandem they're not formally consolidated but do you want to argue both of them all at once do you want to reserve any time for about one minute ok so if we set the time up for coun retaliate in lawsuit it arises out of a situation where my client ms parris dixon had been a school administrator for over twenty five years in the bridgeport board of education in the year twenty twelve she was placed on administratively with pay as a result of a number of instances where it was alleged that she was involved in conduct that might be considered abusive towards two students with in the school where she was principal there were a number of counts alleged under section one thousand nine hundred three section one thousand nine hundred one under the connecticut fair employment practices act and under a connecticut statute an anti retaliation statute which is section thirty one fifty one q and that is a statute which says that if an employee speaks out on a matter of public concern and is there after disciplined or discharged as a result of that speech then the employer may be subject to a claim of having violated that statute m administrator herself for over twenty five years was aware that the past practice within the district was that whenever there was an allegation of student abuse that there was first  an inquiry made of the immediate supervisor as to whether or not the person should even be placed on administrative leave whether it was with or without pay and the instances where ms presidents and was placed on leave that hot pattern and practice was not followed contrary to what happened with ms for as dickson there was evidence that in the past others who were not  same race as her were permitted to have this initial examination as to whether or not they should be placed on leave those individuals were not in the same race as there was also the separate retaliation claim that separately but let's raise claim first as he said the district judge did not think that there were sufficient comparatives here saying people were treated differently permitted to a duce the evidence through the discovery process of the the deposition issue that's that's correct first of all the court severed the much of  factual evidence the most significant portion of the evidence being that there was this subsequent six month unpaid suspension claim now we're talking about whether putting her on minister dave lee pending the investigation was discriminatory and if you want to tell us what there is to support back part of the within the district ok you said you have retaliation claims and the claim about be put on leave without pay so why don't we let you talk and this issue is the central issue are we believe that the procedural posture of those cases rather unusual and that is that effectively what the court the district court did was to split the cause of action the complaint was initially filed in february of twenty thirteen it was amended three times thereafter with permission of the court the third amendment occurring in august of twenty thirteen and it was at that time that the plaintiff amended her complaint to include the fact that she had now been placed on a six month unpaid suspension as appears to us that the court made an error in determining that the six month unpaid suspension should no longer be part of the complaint it had been alleged in august the defendants found a motion seeking to dismiss only two counts of the complaint and the magistrate who was involved in handling discovery issues erroneous lay decided that the third amended complaint which had been filed well before that amendment that brought in this these new claims decided that it was a part of the case there's nothing in the record to show that the district court judge had dismissed the entire case requiring a replanting by the plaintive he merely dismissed two counts not the factual counts involving the six month unpaid suspension or the a license revocation issue ask you assume for a moment that we were to firm the district judge on the first case the first appeal you bring the dismiss al of the or the award of summary judgment on the phrase discrimination retaliation claims about the investigation this claim about  wrongly without paying after she was family to abused children would be racially discriminatory well we presented evidence one was an affidavit from a minor student who was in one of the elementary schools in the bridgeport district which showed an instance where he himself was physically abused by an assistant principal that was direct testimony from that young student and the evidence was that despite an actual intentional physical abuse of that student the same chief administrative officer for the district dr sandra case was aware of an instance and did not even make any attempt to report that assistant principal to d c a for any kind of investigation that individual was of a you know i mean comparing her circumstance to something where they were going to have to be credibility to see decisions made between someone who says there was abuse and someone who see your client is disciplined based on a videotape so how are you going to say that disciplining someone who's depicted on the videotape doing what your client is doing that that's race race racially discriminatory even what was depicted in that videotape was subject to factual question meeting by those who were considering that information on the one hand the district claimed that my client was deliberately dragging the student with a malicious intent the evident however was that she was faced with a situation where there was no assistance for her from the security officers who were there at that school and was placed in a position of having to physically remove the child from a classroom when the child refused to get up there was also evidence that it was somewhat of a game between her and the shown student when she asked that the student get up and walk with her to the office she said if you don't get up and walk with me i'm going to have to slide you and that had been some discussion between her and the student in the past and the response of the student was sli and because the child thought it was a gate so even the factual conclusions to be reached from what was shown on that videotape was a question of fact with  regard to the various district in resolving that beg your pardon we do further to the school district in deciding that i mean you're not question you're not disputing that the conduct could be viewed as abusive you're saying there are there's another explanation that that's not a matter in the first instance for the federal court that's a matter for the school district but the the the manner in which the school district handled this matter  was such that they permitted evidence to come from the district itself but refused the opportunity to my client to presenting evidence and to go through the assaulted by someone who was a comparative or because they were an assistant principal and then even make a complaint to the department of children and families for investigation we've reached your notice of appeal to ok however the district court's decisions specifically spoke to these procedural issues it addressed the issue of the inability to depose dr on paid ministry being paid being placed on unpaid suspension and then very sad the return to work challenges none of which could have been asserted in the third amended complaint because they happened thereafter and i'm not sure how you can justify not not allowing that to proceed i mean we've we've some time setting cases that you can refuse to allow amendment of a complaint but that's separate from whether you could allow the timely filing of a separate complaint and thank you for the clarification it is the claim for crucible effect of the proceedings in the first case that render seek such leave she instead simply filed a purported amended complaint on a company by at that purported amended complaint include the allegations regarding the suspension without pay it did and that perhaps relates to that the answer was attempt to empty the court's question earlier about the claim for clues of a fact recall that the third amendment amended complaint pardon me recall that the four there were two complaints amended it was one that was operative through the summer of fourteen two thousand and fourteen that was the subject of the motion to dismiss that immediately preceded the status conference we've been discussing and then there was the performer the purported fourth amended status conference and that i love the motion met a man not inevitably preclude subsequent litigation only denial of leave to amend on the merits preclude subsequent litigation and i thought here is in our precedent the denial of leave to a man was not based on the merits but on the procedural ground of one timeliness it was it was it was denied on dismissed as precluded i'm not sure what authority says so under this court's precedent curtis your honor this is in effect facts that happened after the filing of the complaint because  first part of pardon me before the filing of the complaint because the first fourth amended complaint the one that had been operative earlier in two thousand and fourteen contain these allegations and then by not to judge chin's question taking advantage of the opportunity to correct the purported mistake in the judge's order noting that the third amendment complaint was operative the plaintiff in effect relinquished those factual allegations so there was a point at which my my point is this said more concisely there was a juncture in this case at which there existed a filed complaint that had been accepted by the court and that was for some period operative and before the court that included the allegations about the why they're duplicative but but sticking strictly to kirk to curtis for the moment under curtis the failure to a man as to facts that existed at the filing of the action  can itself give rise to preclude preclusion even when there's not a clue that he was told she couldn't he was out of time i as i said i well understand your frustration here but preclusion has certain requirements and i'm trying to see how they're satisfied here he he did try to he was not he was told he was out of time she did so on time they are and what i'm suggesting is that the presence of those allegations in an in the complaint in the first presidents in case at a and an earlier juncture suggests is a very unusual situation there isn't a precise analog to anywhere in the press an insult i i think i should say but suggest that the post like that in curtis in that in some sense this case was filed or at least the operative complaint that that the court ended up with at the end of the proceedings was filed after the as to the davis precedent your honor we suggest that to the extent curtis doesn't apply davis does because the operating principle of davis the belief that these this was one similar complex of facts and they're therefore that the litigants should have reasonably expected all of the issues to be tried together also renders the second action flick if with the first thank you honor i think it should be pointed out to the court that with regard to the order of the magistrates to file any amendment to the complaint after the erroneous pay on october thirty first so that in august of two thousand and fourteen when the complaint was amended and it became the fourth amended complaint we already had these claims in the complaint it doesn't make any sense that we would have agreed to go back to an earlier version of the complaint that did not include these claims of the amount of  it wasn't done by motion but it was done by the proposed amid the proposed amended complaint but i think the court has to look at the fact of why is it that the magistrate and then the district court judge decided to go back to an earlier version of the complaint taking out something that not even the defendants had asked for the defendants had not asked for the new claims of the unpaid suspension and the license revocation to be removed that was something that was just kind of done sue a sponsor we were i think your point is that it may be many things and maybe claim push at the end but it's not duplicative because there's a an operative complaint and the events that are in the for the fourth complaint parasitics and to follow that operative that is correct our position is that they can't have it both ways the district court judge on the one hand said  can't amend it to put these claims back into the complaint but then also said we can bring it as a new complaint just one additional point that i want to make and that is that there is a certain certainly a distinction between what is a prime of a show evidence of a discrimination complaint and a retaliation complaint under this court's jurisdiction as a relates to retaliate in matters both  burlington northern as well as the court's decision in selling it is a very very different kind of analysis that one has to do in terms of deciding whether or not plaintiff has met her burden of proof by us being  ever bringing for the before the court the evidence which plaintive had with regard to retaliation that was something that was never permitted to us and we thank you thank you were to take