please the court brooks ames representing gerald alston mary served two minutes for a bottle to yes the question for the court is whether gerald alston a veteran firefighter turman but terminated by the town of brookline who has since been reinstated to his position by the massachusetts civil service commission and the massachusetts court has established a trial where the claims of racial discrimination equal protection clause and retaliation under the st amendment in connection with his terminations the district court ruled allston fail to present competent evidence challenging brooklyn's account of his the term of his terminations the district court applying the familiar mcdonnell douglas framework ruled effectively that it was undisputed the brookline officials had acted in good faith and for legitimate no discriminatory or retaliatory reasons in terminating alston and that no reasonable jury could find otherwise the district court erred in their find this is a really complicated case on going to try to move us along let's assume please that the district court's nami ritual collateral of stop l ruling is wrong let's let's just take that as a hypothetical and that the earlier actions do not preclude a suit against  individuals before we get to whether there is a trial where the issue of fact i would just like to go through each of the categories of the defendant now as to the union they argue that events before december one two thousand and twelve are time barred do you agree with that no your honor all right a to the events after december two thousand and twelve which has to do with the leaves being painted on the fire trucks and two thousand and thirteen and the events leading up to the terminations can you focus an eye on that and tell us why you think as to the union which says look we really want to get involved and we weren't asked to be involved why you think you have a claim against them these are not questions of disputes of material fact these are basic have you alleged and no facts about union involvement to keep them and ok yes thank you you are with with regards to the union the core allegation is the union betrayed its duty to protect mr alston from discrimination within the union and that included discrimination that took place on the union block which the early after mr alston was referred to as the n word by his lieutenant this joseph kenny vice president of the union put on the union block the firefighter austin was a faceless coward and th wrong about that ok what is the claim against the union and then i have other defend and some want to get to ok what's the claim against the union thereafter the next claim against the union is that in connection with the leave incident that your honor noted the union actively worked against firefighter alston and tried to get the town to essentially declare him as dangerous by as to the individual's the guts of that claim are what the commission found which was that the individuals that summarize it for me please we don't have a lot of time the individual defendants had an obligation to repair the breach caused by lieutenant pender's use of the n word that breach created a dangerous situation in the fire department because firefighters have to depend on each other for their safety when they do life threatening pass it ok ten out ok i've got it how about the retaliate for the exercise of speech against the individual town defendants the retaliate in is terminating mr alston the retaliate in his terminating his pay which happened on two dollars occasions as that is effectively the retaliation eighty three claims what's your response the response is that the individual defendants presented a misleading picture to the experts by failing to disclose the expert relevant  information that affected whether firefighter allston could safely return to work including documents that demonstrated that it may their individual capacity dealing with the experts presenting misleading information as opposed to whatever the town began and in its official capacity what evidence do you happen for that the do you have of any action or inaction on the upon with respect to the expert taken as individuals and not as representatives or officials  let me let me try out an answer to that which may not be satisfactory to you but with regards to the individuals ready they're obviously acting in perceiving information because of their position in the town but that doesn't mean that they didn't obtain that information and an example i'm thinking of is that the individuals defendants invited paul pender the lieutenant who had left the racial slur on mr austin's voicemail to a meeting so that utena penner could plead his case and in the course of that meeting it became quite apparent pender was not remorseful for his actions in fact he was resentful and had a grievance against mr alston that was information that individual defendants knew because they were getting it firsthand from paul pender but then they rely in terminating mr alston on a narrative that the firefighter alston has not been able to move on from the incident and that pender has repeatedly expressed remorse so these are these are parts of the record that show that the experts didn't have the full picture and the individual defendants knew the experts didn't have the full picture ok i think we understand that the area whether it's adequate is another matter as to the brookline selectman and their official such policy or custom and that lets them out what's your response to that the response to that is under the supreme court precedent in a number of decisions including our it in action by a policy maker is a defacto policy so when the select men are it's now this like a board ok suppose we disagree with  suffered from the policy would be it is not the case that simply because somebody can add a policy that they are acting as policy makers for a city or town so what is the policy or custom that was involved here where the policy is protecting a unrepentant racist and not taking the breach caused by racism seriously and not repairing it which they had a duty to do ok then they say you've got to have some comparative to show differential  protection clause is about we don't need lectures on that thank you or that there are there is not going to be compared to her because there is no word in english language that is comparable to the n word as applies to white people so there is not going to be a white person who was called some slur who was allowed to return to work without conditions or who is treated better than mr alston under similar evidence in the record that's go ahead there's evidence in the record that a black police officer was terminated after being called the n word and the pilot ok thank you ok sorry i get your argument i think you have a few minutes left if you'd like to finish on anything else  well i think what i'd like to stress is that there are material issues of fact that the commission decided in mr alston's paper and that it jury if the jury credited the grant that's correct in the sense that i submitted primarily the eighty three dollars page report a commission and not the underlying record town in response to my submission our submission of the report submitted the vast majority of the administrator record ok but the the argument is report qualified under those rules to be admissible and that the judge the district court judge failed in not taking into account the facts that were presented to the commission in the facts that were found by the commission and then a jury that credited those facts or found those facts independently would be entitled to find that mr alston was discriminated against on the basis of his race and mr austin was retaliated against for continuing to press the issue of racial discrimination in the town of brooklyn all right so now you're in and you're not arguing that the civil service commission finding itself precludes the defendants from making their arguments you are merrily arguing that it is evidence that the district court should have considered did not consider and if it had considered it it would have understood that there are mecurio issues remaining in the case that could be decided in your client's favor have i got it yes your honor particularly the question of bad faith which is a stand in for pretext which is typically what you have to show in you know i sorry you lost me there why is bad faith a stand in for pretext one can have a legitimate reason to terminate employment can in bad faith decide that you're going to rely on add reason because you want to get rid of somebody but that does not make the reason pretextual you have some case that says pretax equals bad face and that a following that that a civil service that is usually left to the jury to determine whether or not the reasons given for an action were the true reasons and in the case of the civil service commission they had an opportunity to look the decision eye and make a determination as to whether or not they were credible when they said that they had been acting in good faith essentially in trying to bring firefighter allston back to work if if they're not acting in good faith that means they're being disingenuous about their about their underlying motivations and that allows the jury to infer that the real reason is what mr alston's alleging which is that they were acting retaliation and ok and  protect mr alston went and the union also participated in her tally ation against mr alston and just refer back to the eve incident in which the union lobbied over the fire chief which had the fire chief that determined that this was not a situation that required police attention the fire chief was able to go the union was able to go over the fire chiefs head to the town of brookline and was able to get a stay way were the union then purported to represent firefighter alston at a disciplinary hearing a disciplinary hearing which laid down all the conditions that led to his term a nation and didn't defend him at that at that hearing and didn't agree that hearing even though firefighter alston expressed dissatisfaction with the result was not ok i i have doubts but what does that have did do with this sort of  well the union the union's not responsible for the reports but the union did not ensure the firefighter also had due process in connection with the preparation of those reports read the union brief they say he didn't they say he didn't and there's a we think that there's a dispute a material dispute a fact over what in this particular fire union was required to get the union to start working on your side and it's our position it has now and again that's too general is there any evidence that your client requested union intervention  as to the materials that were being to be provided to the experts psychiatry who look at him and say before he comes back to work he ought to comply with these requirements the evidence is that at the hearing where that the expert's report was presented to mr alston in the union mr alston expressed dissatisfaction with the outcome official and individual capacities and town council jocelyn murphy and h r director center to bow i may proceed clay's thank you you appellant admits that he did not argue issue preclusion applied to the civil service commission before for the lower court there are four main points that i'd like to make an oral argument today  has not offered specific and competent factual support for the premise that underlies his entire case that it is he was subjected to a hostile work environment under the three scripts of the  corporation which is the case with a particularly nasty set of facts that's going on versus national grid holdings those cases hold that employer defendants such as the the town defendants in this case would be liable if they knew of discrimination and failed to take prompt and appropriate remedial action and in those cases prompt an appropriate appropriate remedial action was an investigation a verbal warning a written reprimand in one of the cases terminations for the bad actors rd strike which included both a slur and physical harassment here the town defendants and best a gated disciplined the bad actor with a two week suspension anger management sensitivity training mandatory mediation and immediate transfer the chief at the time peter scary warned all of the workers no tally ation the town and listed the assistance of the d to come in and train the entire town workforce on any discrimination and bias training that on and acted a town wide zero tolerance anti discrimination policy one of the opponents arguments is that pender the bad actor in this case was not told as in the other cases that he would be fired the entire department was told there was zero tolerance for any discrimination when the town issued to every member of the workforce including the fire department the antidiscrimination policy that said there's their tolerance for discrimination these are acts that took place prior to the norfolk superior court case and judgment but the norfolk superior court case and judgment speaks to this point as well and i'll get into that more and a nd the nd point that i'd like to make for today is the undisputed evidence and the evidence truly is under spewed the statement  facts which are in the appendix before you before the court is largely almost completely undisputed by the appellant the understood view that the dense of the time defendant's legitimate and nondiscriminatory reasons regarding the discrete actions discreet adverse actions taken in this case is also undisputed proof that the adverse action were not up next a nation so touches upon two elements of the mcdonnell douglas test and the touches upon the mount healthy defense as well specifically and then told the chiefs when the chief came in to meet with him that same day that he didn't survive he could get caught in the crossfire the chief than and placed him on leave pending psychological evaluation by an independent medical professional and the appellant agreed that that was the appropriate action and that he felt it was necessary as well that evidence goes to the nd prong of the mcdonnell douglas the nd and rd prong of the mcdon when the chief issued to the appellant the two day suspension that you spoke about with my brother counsel and condition his return to work it was conditioned upon dr dr brown's evaluations he did to evaluations the condition for regular treatment released for the occupational health nurse to monitor the treatment completion of an anger management course satisfactory passing of a fitness for duty evaluation and random drug testing because of the cocaine marijuana found in the of how and system on multiple occasion occasions over the course of years chief ford also advised the appellant that he was no longer under investigation that his administrative leave would end and he would be carried on sick leave most of the mount healthy defense the the appellant agreed in testimony that the chief actions were not discriminatory or retaliatory no appeal was taken appellant places blame with the union the leave the union to argue to the to that on the union side of things but the appellant could have filed an appeal to the civil service commission without the help of the union he didn't do so and amtrak vs morgan another supreme court case speaks to such a failure to crave discrete acts further there was no no no the nd m cad case filed the record also shows that the appellant began to comply with the chief's conditions it superior court case in this maine point engine judgment is a pleasurable and more than one way the st the st is that the town answered and defended the claims engaged in substantial discovery and the court entered a judgment against him as a sanction for his refusal to provide answers to interoperate doors very specifically refusing to provide specifics the who the  point is that it goes to the mall ison versus north court holding which is that notice must be provided and in this case not only was it not provided but he was refusing court orders compelling him to provide that information the nd subjoined that i'd like to make on this this this point is that this on or cuts the reliability of the civil service commission decision the commission express rejects the norfolk judgment sets that aside not only does it set it aside but it uses these so called shining instances the details of which were st provided in two thousand and nineteen before the commission to make unqualified medical findings as to stressors and hold them against the town council do you have an argument that the loss of employment independently of what the civil service commission and independently of what the superior court gad is a mound healthy situation defendants thank your honor the decision that the five factors were put in place based upon dr brown's independent medical advice in the early part of two thousand and fourteen chief ford put those discrete decisions in place those orders in place in may of two thousand and fourteen and the appellant accepted those are prepared to accept those conditions when quickly just so he objected to dr brown and the town went and got dr price dr price evaluated the plaintiff gave him a full and fair opportunity to provide whatever information he wanted to provide and  issued a decision with three very similar conditions all of which he rejected but doc there was no claim and there was no finding that dr price was tainted in any way by any of the individual defendants or the town or with any sort of intent to discriminate that is was the basis for the terminations essentially almost a year and a half later at the end of two thousand and sixteen that there were repeated opportunities to attempt to engage the plaintiff and his counsel the town and listed the assistance of one cofield the head of the new england chapter of the end  doctor's decision which is for the appellant to suggest to the town what are reasonable accommodations he may want for his return and he made no such suggestions and yet the town took all of these steps to to show to him that it was serious about eradicating race discrimination in employment and ultimately when he continued to not speak  to various town officials not get back to them not show up to appointments to meetings ultimately a hearing was scheduled before another independent hearing officer james lafferty who heard the facts  evidence gave the appellant an opportunity to testify to present whatever evidence in any form he wished to present and he presented nothing he his counsel read a statement and that was  it and and so the opportunity to present this evidence was there and and he presented nothing and so the hearing officer made a finding that relied upon dr prices report and that is what the select board voted analyze that point that vic non says short they are they could be admissible evidence but really it's in the it's an abuse of discretion review case that this court and  gauged in saying that whether or not it was an abuse of the trial courts discretion in that case to admit mass labor relations commission decision before the jury and this court said no views for of discretion are reversed only in rare circumstances that it could be admissible method but that the jury was not likely to put a lot of weight on it because it was an agency finding that this court distinguished one dollars and the st amendment claims that issue is not clear and that case and essentially said as a matter of abuse of discretion we're not going to find that here but judge o'toole's decision is sounds decision on admissibility of the civil service commission's decision in this case was a sound and correct decision the the commission's decision not trustworthy it's unreliable the plaintiff at intends to rely on the conclusions of of the commissioner not the findings the findings of fact the underlying basis facts of the commission decision all the testimony all of the documents those those were largely submitted to judge tool in the lower courts record and so we had he had those facts when he came to the conclusion that neither the town nor the individuals involved in this case violated either the equal protection clause of the th amendment or the st amendment and retaliated against what about you come to this quick just very quickly the the whole issue of the cooperation agreement you have been briefed on all the if you want to impart that the public policy argument main argument is that the appellant waived that argument in the lower court and failed to raise it but beyond that the e e o c case that is cited i think breaks down the elements of what is a settlement agreement that violates public policy and in that case the very specific agreements that the court said could violate public policy said no cooperation you can't speak to claimants that we're filing charges you can't file charges yourself basically we're completely silencing the civil rights claimants who  and distinguishable agreements and the main point is the plaintiff never even tried to seek discovery from these three individuals that he's trying to invalidate their settlement agreements understood thank you and your international association of firefighters the union in this case i'm here on behalf of the union and we believe that the court below correctly decided that  eighty three action should be dismissed because there was no state action the union is not a state actor but one hundred and eighty five dollars claims to be dismissed because there is no evidence of a conspiracy with the town as a matter of following issues having to do with the mr alston's eventual loss of his employment most of which as you can see from the record the union was not involved in the union was really out of the loop in much of this case mr alston for whatever reason chose not to invoke the unions agreements procedures he did not ask for help from the union and that's really what the sting were says his case from the comparative case is that the hoops were people who came to the union who asked the union to help them who asked the union to file grievances on their behalf who asked the union to the settlements or negotiate the last chance agreements or to represent the in their terminations hearings mr also did none of that instead he went out and got his own attorney and he basically few cases when the union did find out about incidents that were going on were this particular the this may one hundred and forty one at this may twenty four teen eating where mr alston received the two day suspension of the union reached out to mr olsen to do you want the union there and he said yes in that particular case and the union showed up and after the meeting was over the union said union president but the real where the rubber meets the road when it comes to union activism is after the meeting when you go up to your union rep and you say i want to grieve that i don't agree with that today suspension or i don't agree with those provision olson never did that and in fact he served the two days suspension and in fact one of the provisions which had to do with anger management course having to go to anger management program he did call the union but he didn't call the union to complain about the privileges and he called the union to find out if he had to pay the co pays and deductibles for that course or whether that was something that the town would have to pay and the union actually did some research is what and and do you agree that every statement here is genius responsibility i mean how does that block war i have not agreed no your honor that is acceptable to every union member and that every union member has a right kilkenny and he went to the union president mr frey and said and complained about it mr frey immediately took it down so our position is the union when it was alerted to problems with attorney becker you can mute attorney shots please introduce yourself on the record and you have two minutes thank you good morning and may it please the court my name is naomi shots representing appellee stanley spiegel with me on our briefs are martin rosenthal and david duncan we believe the lower court correctly dismissed mr alston's claims against mr speaker all mr spiegel has not come up so far in this argument precisely because the allegations against him are so minimal and attenuated from the crux of mr alston's claims the only allegation against spiegel before this court is that on a single occasion mr speaker told an identified rd party that he had access to mr austin's personnel file and that she would not support mr austin if she knew the quote real story contained in that file only to the claims that mr allison originally brought against mr spiegel are to show me a piece on this appeal he has only argued that his st amendment retaliation claim state a claim should not have been dismissed and that his claim that mr spiegel participated in a conspiracy to deprive mr allston of equal protection stated a claim that should not have been dismissed in dismissing mr alston's st a minute complained the magistrate judge correctly noted that mr speedo's brief comment was quote an oculus mr alston did not play it that this comment had any impact whatsoever on him much less an impact that rises to the level of a civil rights violation under any of the statutes mr al simply did against mr speaker on in our briefing we have pointed to six or seven deficiency is in the complaint each of which is fatal to austin's claims against speed but this court need go than the question of qualified immunity to uphold the district court's decision mr alston has waived any argument that mr spiegel is not entitled to qualified immunity by failing to address it in his brief that in and of itself and his claims against mr spiegel but in addition the fact existing clearly established case law and i believe my time is up i don't know if there any questions from the court now thank you thank you thank you attorney shots you can  attorney so brooks aims for gerald alston the one point i had i'd like to leave on has to do with why was mr alston terminated and the argument that i heard from the town is used terminated for going to comply with conditions but it has to be clear that mr olson was not terminated because he violated some drug policy for example of the town of brookline the town of brookline does not terminate for use of drugs there is evidence on the record that when mr alston was brought before this point here hearing internal to the town they had as of drugs they did not terminate him he received a warning so there was not a this is not a terminations for drug use it's not a termination for making threatening statements mr also was not terminated for making threatening statements he got a two day suspension for that so the issue really boils down to why did mr alston have to see a psychiatrist and take in your management in order to return to work the reason according to the town was that mr alston was failing to cope with this backlash and the aftermath and a continuing retaliation by the tenant pender who was key finding of the civil service commission but is that the town was responsible for that environment and effectively it couldn't poison the workplace against firefighter allston and then fire him because he couldn't tolerate that it environment so the true reason that he was to terminated was the misconduct of the town the axe emissions of the town that made the workplace intolerable for him to return to and the hiding behind that expert's report and the hiding behind an outside hearing officer doesn't work and it was exposed both in the ten days in front of the commission thank you that concludes the argument in this case