good morning runners may please the court my name is david poor and i represent the appellant in this case mrs flanagan served three minutes of time to rebuttal yes and we'll keep our eye on the clock it counts down ok great thank you there are three claims that are issue in this particular appeal the first two claims arise into the first amendment the first claim is a retaliation claim the second is a free exercise claim and the third claim is the title seven fi horror fair employment housing a claim that alleges religious discrimination in the workplace the first claim that the retaliation claim judge chen who has had just record judge decided that the claim should be dismissed as a matter of law because the plaintiffs personal opinions and speech regarding her christian faith same sex marriage and homosexuality deserve no protection of the first amendment is our position today that that ruling was in error and that business is pretty much a gross any question right there is to say it was her speech a speech but it's complicated a little bit because there were there were two of her coworkers that did say in the workplace that she did express neutral opinions about homosexuality in her christian faith but nothing derogatory she didn't cross the line so you do have some comments were made to coworkers in the workplace so she's denying it in a way and there's an issue of fact there is an issue of fact ok so that it could have been granted as a matter of  absolutely and during this particular time this was two thousand and thirteen so there was obviously a lot of commotion about same sex marriage whether or not it was protected under our constitution there were a lot of dividing lines that were happening because of that and so basically in this particular circumstance miss flannigan and some of her coworkers has said she shared her christian faith or her beliefs in the workplace and outside of the workplace in order to sustain the summary judgment i think we have to do is to say that even if every factual our of our summary judgment question i guess we assume that the allegations what she said are true are true and then we go from go from there i would agree even if the court finds or maybe disputed issues of fact pertaining to whether or not she said it and  she cross the line in saying some of these things if the court determines as a matter of law that this does not implicate a matter of public concern then obviously the plaintiff loses that first claim i mean it seems to me that if we give her the benefit of the doubt that she holds these views sincerely and and so on this city has a countervailing interest in this actually prohibiting discrimination in the workplace and if if she was doing anything that may have given act to her beliefs and i'm referring specifically to refusing to let a lesbian volunteer twenty or more cajun and we decide it's not a matter of public concern that the city would be justified in terminating here they would i think if you had a pickering analysis here and factually it was determined that she did commit t misconduct that her comments did cross the line so to speak then i think they were then comments i guess that that's what i was getting at it was actually active discrimination in the sense that she would open the door to the secured area of the police station in order to permit a lesbian volunteer to enter that area and then then that's correct i think that their argument was not not only did she make the comments but there was a course of conduct that occurred over a period of approximately twelve months where she would not allow access to this the volunteer to come in it's i guess my point is that's not speech that's conduct and the city has a policy that says we don't tolerate discrimination on the basis of sexual orientation and if and that's why i say that these are disputed matters of my client denies you know refusing to access to ms taylor on these occasions how about i think your client admitted that something to the effect of had i victim that i thought she admitted at least that which she admitted is that she didn't see her i d and so she said if i would have known it was just you i wouldn't have let you when she came in with the other volunteer who did show her i d so that's the only reason why she'd let her into the building in other words she's very material issue that she is and she's saying that she had a legitimate reason for actually questioning her idea at that point because it is undisputed that ms taylor did not show her id on that particular day april eighteenth that's not disputed in this case and really what happened on april eighteenth there's a very serious question because not even ms taylor supports what the city claim my client did to her miss taylor herself did not say that she was rude she simply said oh i thought it was an officer when my client you know saw her come in that day so despite what the city is trying to claim i don't think that even ms taylor supports the allegation that somehow my client was nasty or rude to her on that particular day i'm going to come back to the sort of statement of public interest public concern i mean it's a it's a tricky question to analytically if your client said only what she says you said basically if there's no public concern stuff because she says i really didn't say any of it i know what what my client says that she did say and then what two of the witnesses say that she did say in the workplace was that her christian faith did not believe in homosexuality or same sex marriage but nothing more so for example  even come close to statements of public concern the state was public concern or when somebody says something to somebody outside of the workplace so that something can be done about it or object to it so the public understand there's something going on if this is purely internal and all she says is this is my faith and this is what my face says i don't think we get into statements about the concern first of free speech protection i don't know if that's a correct analysis because at least under the city of san bernardino case i think that would be correct if this in connection with some type of grievance or personal dispute but if an employer finds out an employee he holds assistant sincerely held religious beliefs through whatever source it could be the personal opinion of the employee a comment made in the breakroom whatever it may be and the employer then fires the employee because of those that personally hold sincere belief i believe the employee still deserves protections because again it's not part of some of it this i mean internal dispute me down we're free exercise or  protection free speech protection well i know that there are no cases that covered this particular dispute except for the cochran case which is a lower court opinion out of atlanta in which the court did find that employees statements concerning same sex marriage and homosexuality in the christian faith did deserve protection in the workplace i think that's why i asked you that question about the difference between her believe and speech about her beliefs  because it seems to me that the city's theory here is that it was her sincerely held beliefs and disapproval of homosexual lifestyle that led her to take certain actions in the workplace against those individuals that she perceived to be homosexual and the city has a policy that prohibits and that to me that doesn't sound like a first amendment protected activity why i think would only implicate the first amendment if you had the pickering balancing test for some action that she did if you posted a flyer it establishes the motive for the action the action refusing to allow nine through four eleven in the record and it talks about how ms taylor was denied access by mrs flannagan and several other police records specialists are records clerks in the department and how she complained about it over a period of approximately a year and so in the report itself it details approximately twenty to thirty circumstances or it did list twenty or thirty circumstances in which she was denied access by various record specialists over a period of time and your client as i understand it says and refutes the charge that she in fact refused her entry because  before this court today is that there were disputed issues of fact and that the court judge chin did weigh the evidence and determined that the four people that allegedly came forward to identify what he characterized as homophobic statements that my client had made that indeed those statements were true in my client denied making the statements and actually if you look carefully at the report he identifies four individuals to those and individuals say that she made neutral statements about her faith and homosexuality but nothing disparaging so was the volunteer on april eighteenth two thousand and thirteen when taylor arrived at the police department to attend a meeting and apparently that allegation was sustained yeah the second allegation was she created a hostile work environment by speaking openly to her coworkers about her dislike and bias towards homosexuals and denying taylor access into the police department because of her sexual orientation and the third allegation is that plaintive provided false and or misleading statements to her sustained was she permissibly discharged she was and she admitted that in her deposition that if these things were true then she herself said she'd been with the r p g from most twenty five year long a long time so she herself knew that if these were things that were s in the workplace than terminations was more than appropriate and she admitted that and this is a tricky question i realize we're taking a dime but don't worry ok this is a tricky question and if we've got an administrative hearing and we've got a finding after the administrative hearing  that is supported by some evidence maybe disputed evidence but the conclusion at the end of the hearing by the hearing officer says that's what it is that she get an overall trial on what happened in the district court she does that department is obligated to do as a pretty deprivation of heard of her pursuit or excuse me her her property interests so it's a procedural due process question we did allege that initially in the complain this case this is not subject to the appeal here today skelly hearing is meant to be a informal meeting between a supervisor and the employee about whether or not the conduct was submitted typically have witnesses are not called there's no cross examination it's simply a process to give the good morning may it please the court my name is christine maloney i represent the city of richmond and former police chief chris magnus now chief of tucson arizona i would like to address this issue of the free speech claim nowhere in the complaint is the free speech claim alleged the first cause of action is the cause of action under section one thousand nine hundred three it identifies a number of constitutional violations nowhere does the word speech or the term free speech appear plaintiff fashion the complaint as a petition claim and describes that her first amendment activity under the petition cause were her complaints on matters of public concern which in deposition she explained to me were the two e mail she sent to supervisors complaining about chief magnus allegedly running a quote corrupt department and different e mail allegedly being not fair and impartial those were the petitions that she made through her e mails that she claims supported her first amendment claim not religious speech not allegedly telling anybody whether on or off duty that she is a christian who has firm views on homosexuality and same sex marriage that's not anywhere in the complaint it wasn't in my motion for summary judgment because i'm not clairvoyant that came up only in opposition to summary judgment and the court dealt with all the various bases of her first and fourteenth amendment claims including this last one that was tacked on at the end but we opposed that claim on the ground that when bringing a motion what was then in the complaint which were the petition claim for her complaints on the matter of public concern and then she added that you know besides that point she's also engaged in protected speech based on her religion and it was not that she had made the very homophobic and offensive and discriminatory comments that she was terminated for she now claims without any evidence in the record that she in her off duty hours told some identified coworkers about her firmly held religious beliefs that include views on same sex marriage that doesn't appear anywhere in the record that is a newly minted claim by plaintiff's counsel to try to make this a public concern case which wasn't pledge as a religious speech case and you know given the fact of the current legal landscape in the same sex marriage cases but that was never anything in the record that she complained about how did you reply to it we replied to it just in the way i did here that my circuit case law says that the framework for summary judgment motion is by the theories played in the complaint you cannot for the first time in opposition to summary judgment raise a new legal theory without going through the process of seeking amendment which was never done in this case that was our primary argument our secondary argument which was brief was that even if you considered this it would still fall under the guard said to your pickering analysis for the same reasons that we went through with the petition claims on the complaints of matters of public concern so i do not believe this issue is even properly before the court for decision because it was not properly raised in the complaint in the proceedings below i'd like to also address though on that speech claim i  think judge silver you said if she disputes that she made these homophobic remarks isn't that enough to create an issue of fact whether we're talking the speech claim or the discrimination and the answer to that  and i would refer you to the ninth circuit decision in vienna remount versus aloha airlines in that case the ninth circuit said that you do not create a genuine issue of fact just a pretext by merely disputing the employer's legitimate business reason you must show by specific and substantial evidence of pretext that the defendant did not reasonably believe the reason to be true did not hold a good faith reasonable belief that the however then they made a decision basically that she wasn't telling the truth is that right is that is that your position in terms of whether or not they have established it wasn't pretext i mean they had to consider they have to consider that that she did i did or did they not they considered that when they were doing the investigation and she was in her interview with lieutenant curran who was the investigator on the matter she was asked whether all these episodes with sequoia taylor the volunteer occurred whether she made these statements that two of her covert two or three of her coworkers had heard her say at work and she her answers were invariably no i did not or i do not  recall she so she denied it in the investigation lieutenant current determined that her answers were such that they actually indicated she was not telling the truth because they were consistent denials i would also add that in the end and can  make that decision on that record as a matter of law it's not a credibility issue judge chen didn't have to make that decision because the city made that decision the city was entitle to  disprove that and show pretext the plaintiffs can't really dispute the reason and say no you know i never said those things she actually has to show that the city didn't believe those things they were saying were true were true that the city didn't believe she had made these homophobic offensive comments in the workplace that's what she asked to show in her deposition she testified that she doesn't believe chief magnus made any of these statements up she doesn't believe laurie qur'an made any of these statements so essentially there is no pretext right yes that record yes there's no issue of fact on whether or not they could have showed pretext to a jury yes and there's a number of ways to show pretext and we showed that she could not prove pretext in those even though she denied it even though she denied the underlying conduct because her denial alone doesn't create pretext that severe emo she has to show that the employer did not in good faith reasonably believe it's own legitimate business reason in other words it was a fabrication free or the jury would find that it was they in fact that was the they would find that or is it better of law or that a interviewed the investigator is evaluating the relative statements making credibility determinations and the employer is entitle to make those and was reasonable at the you have to come up with that make those determinations meaning the employer despite the fact the employer is biased right and determining whether or not who is telling the truth and who's not i don't know how you can say the employer is biased there's there's no evidence of bias there's little i mean just naturally the employer is going to be happy to be able to justify that she was let go so there's there's a there's you know the institutional bias but but i'm not i'm just suggesting that not because the employer is the one that made the credibility germination yes ok which they're entitled to do you know to come to a business reason and then to show that that's wrong for purposes of a forward with evidence or pretext to show that the employers reliance on that and internal investigation report really wasn't in good faith that they actually fired her for because of her religious beliefs and you're saying simply  investigation report in the statements by all the other witnesses against her is not unknown at step three to meet her burden that's why it doesn't need to trial it is not enough that step three on the discrimination claim for certain belief she ever explained that's the way she articulated it as a firmly held match is basically accepted that is true yes yes but the problem is from the standpoint of her employer she can hold those belie but she can't do things in the workplace that interfere with the orderly operation of the workplace that's correct she cannot make statements in the workplace in front of coworkers that she believes homosexuality is a sin that anybody who is a homosexuality is going to go to hell that the chief who is an openly gay man was creating a gay environment that god created adam and eve not a am and steve and the litany of other offensive homophobic claims that she made including that she wondered with respect to sequoia tailor the volunteer what bathroom she might use the men's or the women's that she wondered with sequoia tailor or she's she stated that she wouldn't want to go to the gym with miss taylor for fear that miss taylor would stare at her blatantly homophobic comments that when set in the workplace can create a hostile environment  just for miss taylor a volunteer but for any other employee who is a sexual minority in the workplace that's the conduct that she was terminated for not for her beliefs ok so i we have talked about the first cause of action which i fashion as a petition cause of action i'd like to address what is not presented by this appeal the trial where the district court's dismissal of that the municipal liability under section one nine hundred eighty three was dismissed by judge chen in the district court on summary judgment that has not been appealed so we are only looking on the first cause of action at whether a claim for free speech was pled and exists against chief magnus keep in mind that chief magnus was not the ultimate decision maker in this case he was the skelly officer and so what the process was is a complaint came forward from miss taylor to vicki reagan's an administrative secretary who informed deputy chief medina this in his declaration that a complaint has been made and miss taylor  uncertain whether or not her friction inability to access the department was due to her sexual orientation so deputy chief medina instructed miss flanagan's the plaintiff supervisor lieutenant curran to conduct an investigation who did it along with the immediate supervisor that investigation is then reviewed through the chain of command it went to captain anthony williams there's the person whose name we haven't heard who actually recommended terminations he was the one who looks at the investigation formulate his recommendation that goes to the deputy chief to agree or disagree and then it goes to the human resources director for the city  another name we haven't even heard who actually writes the recommendation for terminations and in her deposition or declaration excuse me she testifies that she makes recommendations for discipline by comparing  conduct at issue to other cases in the city to ensure there is consistent treatment that the penalties are consistent across the city that due process is followed and she is the one that authored what we call the spelling notice the recommendation for terminations then there is this pre term anation informal meeting with a skelly officer who is the chief who hears whether the employee has any evidence that should be considered or is allowed to give reasons why they shouldn't be terminated before the decision is made the skelly officer hears that writes up or report makes a recommendation gives the to the city manager who is the ultimate decision maker and that was bill lindsay in this case chief magnus was merely one step in this whole process and yet he is the one accused of discrimination and if you look at the record closely you realize the reason is because he's a gay man she plaintiff stated in her deposition to me and she stated in her paperwork that she did not believe he could fairly pass on her guilt because of his own personal biases as a gay man not because he ever articulated any bias to work that was her judgment her bias that led her to conclude he could not be fair you know your mood over i will sum up we respectfully request that the court affirmed the district court on all causes of action and specifically the ones that are not appealed to here and then with respect to the speech claim we believe it's nonexistent for the same reasons in our brief we think the exercise claim is nonexistent it was pledge is an establishment clause claim and that with respect to discrimination i would actually refer the court to at least one or two ninth circuit decisions that are incredibly close which go into detail about plaintiff's religious beliefs and eventually conclude with stating that defendants violated plaintiff's first amendment rights and that defendants retaliated against plaintiff for making complaints of public concern to defendants and terminated plaintiffs as a result of her religious beliefs and you cited those in your library and that is contained as c r twenty seven to twenty eight with respect to pretext i do think it needs to be addressed because i don't think i've covered some of that in my initial argument there is evidence in the record that others some of the situated employees were treated differently than the plaintiff in the investigation report itself it identifies many circumstances of other records specialist denying an officer reilly with our p d who claims a one of the records clerk made a homophobic remark to him and nothing was done about it so we do have evidence in the record that can establish pretext in addition to the fact that  qur'an had conflicts of interest when they conducted their proceedings irregularity in proceedings can be a factor for pretext and most importantly the six month limitation in the collective bargain agreement would ask the court to take a look at that particular  well because the collective bargaining agreement does allow for related conduct if the employee reese previously disciplined that's what the defendants are defendant argued in this case the problem is there's no evidence in the record the plaintiff was ever previously disciplined for this but there and she d thirteen but it but if that's what triggered the investigation that is what triggered the investigation but if the city was aware of similar conduct that occurred twelve or eighteen months beforehand and nothing was done that nobody complained about flanagan refusing hundred which is lisa everett statement she was my client supervisor and she specifically says here that she witnessed numerous incidents when flanagan ignored taylor why she stood in front of the counter to get into the building ever it did not counsel or disciplined christopher magnus submitted for decision at this point will take a ten minute break and will be back in ten minutes thank you very much