good morning or your honour's may please the court have asked for five minutes for rebuttal i may please the court once again this case is on appeal from the middle district of tennessee and we're appealing the grant of summary judgment in two cases that have been consolidated for in this appeal they originally three cases that were consulted for discovery in a not really sure i've never argued two cases at once so i will do the best i can and and answer the questions as they come depending on the case and we were directed at the beginning to maybe argue things that were not sufficiently briefed at least in our estimation and i don't think in reviewing  that i distinguish these cases enough even though they were consolidated for an appeal i don't think that i properly or adequately distinguish them because there were common threads in common questions of law in fact  that for which the cases were consolidated but they are different cases and some of the things that i don't think that i properly at least emphasized in the briefs are that these were different employees and different in different positions in different situations mr larson was the city clerk consider recorder and i think that opposing counsel in their briefs of acknowledge that she was an officer a city official and therefore in some of their arguments may be exempted from the handbook even if she had a property interest but by the same token saying that she didn't necessarily have the protections of the city charter so i think that's one important distinction that mr medlin was a language when they sign it but as we've said in our brief litany of several cases at least that a property interest can be generated to derive from an implied contract that is a common understanding of the parties and based upon the conduct of the parties  all of that there was it was limited but limited based on their from ation that we had at the time the record as we've cited it demonstrated there were multiple it and again there's a difference in in this case mr medlin was offered a pre term anation hearing  larson was not right and so we cited multiple instances before this where the handbook was complied with in addition to the language itself of the hammock which says you shall have the right to these things to to these protections which is completely at odds with the position taken by the at the least in this case which is that there really is no prob no property interest being being generated from the language of the policy  handbook in addition and going back to what i originally was saying that mr larson is not exactly similarly situated because the conduct that they were alleging that triggered these dismissals was very different there's no there's really no getting around that mr medlin conduct by any reasonable measure can be compared with miss larson as well there's no question she is a far more sympathetic case it's absolutely ok what do you do we i mean we have to apply pendency law brecht to determine whether there's a there whether there's a property and and we're not talking about you know public policy or anything there know what their claims it's just you have again the distinction is that miss larson is a public official no i may disagree with both of those cases in their turbo taishan of the language may is being permissive at this doesn't seem to make any sense to me at all but i've got to deal with the cases that come but in that particular case but making a distinction the distinction that i would make is that she's a public official not just a garden variety employee in this particular case if you look at the handbook in this cases there's a very dedicated very specific procedure removing public officials that they have knowledge she is in this particular case and i believe the no in auburn case i believe it was a police officer but i can't remember exactly i believe those are employees and that's the distinction i would make because if you don't protect your public officials then there really is no sense of having a charter provisions at all and again but still also we're talking about again and we travel under theory of implied contract again i think if you take the the handbook language and read it permit period with the with the protections of the stent simply granted by the city charter and look at that previous conduct the conduct of the city in protecting other employees whe is that if you have a hand even if you reserve the right to change it if it's long as you are abiding by it there's an mutual understanding the parties and i go back to the record mr morrison in particular when he was question which is in the record sitting in the city manager this particular case when i asked him about you know these particular things he seemed to think that these were mandatory at the time and very sympathetic to mr vaughan in particular so there's no really direct case on point that i could find anyway but again if we travel on to this theory that there's an implied contract based on the common understanding of the parties response certainly believe that she had some protection i think i think a fair reading of the record certainly in a summary judgment as we're talking about her summary judgment context is that he believes she had some protections in this particular case and so based on that common understanding that she can make a claim at least at this phase the sheet of property interest the rived from this implied contract theory she's not making any subs in terms of the the process protections really that's what i really wanted to stress was that i think they're different cases the same theories very different cases again her conduct was very different as opposed to his conduct her position was very different and we have to accept that he was constructively destroyed you would and that's that's the one thing i forgot that's the major hurdle that he has in addition that she does not and opposing counsel has properly pointed out that i think the burns on him to show that because the presumption is that he was voluntary resign he said he signed a letter senate that there was some form of duress or some form of coercion i think one of the cases i cited talked about making an environment so intolerable that you couldn't work there anymore but that's not exactly on point because here he was already on suspension when this was going on again they didn't fall the handbook in terms of how they suspended him and the charges notice the charges and things that nature but the onus of the burdens on him to prove that there we've argued in and set forth in our brief that we already knew that the game was over fix was in and there was evidence to the record to dispute the fact that it wasn't  he really had no choice in the case but to take some money that he could salvage from this and voluntarily resign otherwise it was a fed a complete was not going to get anywhere with the hearing and gibbs larson didn't have that opportunity m yourself now go hit the bricks and don't come back and then a few weeks later having the city council in secret adding to their adding to their business this particular set of business in reaffirming all of the argue based on the city charter and but he but he was subject to the city manager your police or wherever else could that act i believe is their understanding interpretation i have nothing to disprove that that he was under the the they received all process that they were due this case is fundamentally about a public employers right to respond to and correct inappropriate sexual conduct in the workplace the it's important to point out here that the plaintiffs agree that the city had a right and a duty even to make sure that this type of conduct was happening in the workplace and to address it and they don't claim tone right the police officer justin medland had a city provided cell phone and a city provided cell phone service and she testified that she knew that and a lot of these communications were happening  during work hours while he was on duty and while she was on duty as well communicating with somebody else and they have a device i can get fired  she knew that the police officer was on duty when it was happening and participated in it and i know you it's not incumbent upon the president to make sure that you're not communicating with somebody who has a work phone or is on duty but she knew that at the time the city clerk serves at the discretion of the council right that is correct and then at will employment state like t as the court has already pointed out the case for close is that it talks about the language in the provision of the city charter and how it uses the permissive may in connection with these and they were rated offenses for which an official can be terminated so what the provision of the city charter says is that the mayor other public official may be i think it's two probably i think the numerated offenses are probably serious enough to warrant a policy decision to where they decided to add some additional protections official or employee could be fired and that provision and other methods of doing and that's the controlling interpretation of of tennessee law and that the district court properly applied that and this court law and of course due process rights their property rights for purposes of due process are created by operation of state law and so the tennessee court of appeals opinion would be dispositive here published opinion by this court so this court has already relied up on it in a published opinion nd of all i think the district court cited several cases where published cases of this court where they said that absent some good reason they would that the state supreme court wouldn't rely on it or that it's just wrong on the law they would rely on the unpublished opinions of creating some policy for terminations and procedure is totally and completely unconnected with whether there's a substantive right to employment to begin to to safeguard substantive rights if one exists but it doesn't reverse engineer it doesn't work backwards just having an established procedure doesn't mean that every  official out in the city of all gather every employee of the city of all good has a substantive property or property right to their employment their employment there is no of employment the employment relationship is presumed to be at will and the plaintiff has the burden of rebutting that presumption they can't do that here because they don't claim that they have a contract of employment they don't  written changes it may have acted inconsistently with what the written policy was but that's not a due process violation if there's no substantive right to employment to the job to begin with  the government is free to create procedures at the constitution that doesn't require it doesn't automatically constitutional laws the employment as a substantive right so in the know that it make written these is what the due process clause required requires what's minimally constitutionally adequate and so the state can create procedures that are more than what the constitution requires but failure to follow those is not a due process violation even if you have a assumptions of right to employment which these employees just don't have in the face of the express language that says this is not a contract and we unequivocal language demonstrating the employer's specific intent to be back out that's a very high standard of court so there's no clear way for the government to indicate intent to be bound or alternatively not to be bound then to just say it and that's what just be no argument that there was a meeting of the minds that has created an implied contract to create a substantive right in employment in the handbook correct the same provision which is identical substantively identical and the district court laid them out right next to each other to show that i mean they're basically verbatim that was insufficient under ten law to create a property interest in employment so and again that's the controlling decision and interpretation of tennessee law  of the services it performs service employees and he certainly hasn't heard it presented any specific not conclusive evidence that links whatever speech or conduct that he's asserting or maybe serving  inappropriate sexual conduct and communications in the workplace with city property while on duty and they all three testified that they knew what they did was wrong the city couldn't permit this type of behavior to occur and how to write an obligation to respond to it to her behavior to his behavior although the entire situation i guess i mean i don't i'm not sure that the merits are issue but you keep saying that and i don't i'm questioning whether she admitted wrongdoings none of what they did was during jobs right now it was all well a lot of it was during job done a lot of it while they were while meddling was on duty and she knew that he was on duty and knew that he was communicating with her using is his work cell phone so she may have a more sympathetic case than medland certainly but in an employment at will state the employer especially a public employee or faced with this this kind of situation is well within its rights to take whatever action it sees fit to eradicate that kind of behavior in the workplace and that's a policy decision that said she knew that all this was going on duty that's not your honour's have the record and i think i briefed it i think she said the city certainly has a right to police its sexual harassment policies and  we believe his personal phone was certainly her personal phone and she might have admitted that some of the stuff that she said in may may have received while in work hours so whether or not that makes a difference in in the analysis of this case i don't know i may but i wanted to clear that up that is simply not what happened here that is not what's in the record and i want to make sure that was clear no one is arguing we're not arguing that the property interests emanate from the procedure itself that's not what we've argued that's not what the case is say to be clear  property interests emanate from state contract claims in this particular case we think both again the conduct of the parties as was discussed earlier in the st set of argument that th e city had this language and said we shall do this you have a right to these certain things set forth in the handbook completely inconsistent with the position that there are no property rights even though they did say that  does express the state that on their larsen is the city the clerk in the recorder so i don't want to leave the impression that she actually drafted that particular language she may have printed up the documents and did what she was supposed to do is the city official there but again we're not arguing that we're organise an implied contract based upon the conduct of the parties into say that there's absolutely no evidence of the failure of a meeting of the minds well that's the essence of this case  d we're on summary judgment proceedings questions where that we've this is sufficient facts that are reasonable trier of fact could find that there was not a meeting of the minds and that there was or at least there was a an implied contract based upon mutual understanding  again it is our position that when you read these things together it is an utterly meaningless provision of the city charter if you're going to say that may is a permissive word in this particular misconduct showing up unfit for public service or permanent disability but what if she's terminated from other than that are you saying that those are the only grounds that city clerk can be terminated  therefore she has a job for life unless she commits grave misconduct or permanent disable or has unfitness could remember there's a catch all provision in there as well but i don't remember that but i know that's not what we're out of and it only has three only three terms and i guess your position is once you hire a city clerk she has a job for life absent these three things right goes the hearing only applies to these three things well they're also provisions in the handbook that they didn't follow well the handbook doesn't does the head like a part of the city clerk i think it does ok i didn't think it applied to city i mean usually city clerk serves at the discretion of the council and  ok maybe it's different in ohio or something and here's one of the problems with this is that if we've been able to flesh this out if if if they had done at least give us some public notice that they were going to ratify the terminations again from the very beginning there were some uncertainty as to whether or not she'd been terminating the record we sent a letter saying if she terminated never response and then a few weeks later a couple weeks later he does his public press conference where he smears all of these folks and then we have this stuff coming up on the the council