good morning your honors may please the court my name is christine roman and i represent mr albert de brito the appellant in this case i'd like to reserve three minutes for metal your honour's mr brito dedicated his life and livelihood to public service as in law enforcement he wanted to make a positive contribution to the community so after retiring from the f b i where he had a long and successful career he accepted a position with the city public safety department for the city of st joseph when he came to that department he found numerous inefficiencies instances of favoritism and some concerning an ethical at best and potentially criminal at worst conduct he watched his legitimate concerns about some of this conduct that was occurring from the director of the department to the city manager and in return was fired in granting a summary judgment to the f a lease the district court drew inferences against mr de brito and also under took the role fact finder weighing contrary contradictory facts and evidence in favor of the a police this is entirely inconsistent with standards for reviewing a summary judgment motion the truth is paramount paramount to prop functioning of an ordered society and if we don't allow insiders the opportunity to speak about and raise and bring to the surface concerns about improper conduct within our organizations  governmental organizations we lose part of the fabric we endanger one of our most cherished freedoms the first amendment freedom of speech and if you don't that might be true but the supreme court in the  if it's a matter of the functioning of the government as opposed to speech by a private citizen regardless of public concern that there there is no first amendment protection i mean you're  arguing well maybe this is not a good policy that the policy ought to be that public employees should always be able to blow the whistle no matter what the concern is but that's not what the supreme court said  instances but the first instance about the purchase of the firearm there your client actually did a governmental memo on government  department well it doesn't look like a public concern matter to me i mean by the by the memo itself i would submit your honor the memo was put was printed on letterhead for the city he signed it with his official title you did your honor but he typed it at home and his personal computer looks like he's doing it part of his business but it is always to a private citizen raising a public concern looks like it's part of the business function just just by the document itself but it can be both i would submit your honor makes each has been protected and if there's an element of a private concern about the issue as well as an element of a public concern which misconduct by the head of a department in one unfortunate department in any community would be a matter that there wasn't any substantiation at least at the point that he was making the complaint that it was misconduct actually your honor i believe was confirmed eventually to be misconduct it wasn't necessary but at the time it wasn't necessarily a violation of a specific policy at the time but the city did determine that there should be a policy because it was not an advisable practice so that sabbat concerned was substantiated and they did implement a policy after the fact that we judge it by what what it was at the time of the actor as of later on well you can judge it by both because at the time brito believed that not only was it unethical it was potentially criminal criminal charges weren't pressed either which is an issue in this case but even if criminal charges were pressed a it doesn't mean there was no crime it simply means there was no decision to move forward to investigate and charge a crime and b even if there wasn't determined to be a crime the belief that there may be at the time is sufficient to warrant the ability to raise that concern and again crime happening at the top of an organization is a public concern public concern is construed and meant to be construed quite broadly so in respect to firearm it doesn't it's not dispositive that there weren't criminal charges brought and even with regard to the issue of defamation that in itself is not simply a private matter either because within the bigger picture yes he's defaming one person but he's doing it in the department to a mutual subordinate that has the added impact of disrupting the ability of the department potentially stories out of public concern as opposed to a business concern that sounds like it's a function of the business defamations going on between two employees in the police department why does the public have any but if concern well your honor the public would have a concern about that specifically because it might in french very likely could infringe the ability of the officers who are engaged in this battle for securing loyalty or for the undermining from the top of the second in command perhaps officers lawyer loyal to the director would not want to it seems catatonia was i mean to say that that's that's an important public interest as opposed to a business interest but to the extent that it doesn't want anything that goes on in a business that's that's a governmental agency like this you could always say why have some public impact your theory i guess that role is hindered by the the undermining that's happening then that can create a problem for the community and they should be concerned about that  with a with a broader brush the primary issue is in our position is that this case was not properly granted and not properly granted motion for summary judgment there are genuine issues of material fact threw out and when you're drawing inferences on a motion for summary they need to be drawn in favor of the party which was mr de brito in this case so if you look at for example the question of whether the speech was made pursuant to his job duties which the affably is argue that they were and the court found that they were four of seven factors even if you don't look at the later cases of lean and this keep court's case in bolton versus  of those seven there are factors on both sides there are facts that go for both sides when that happens the question is properly submitted to a jury not removed from the jury and decided in the court on a summary judgment there's a question of whether the state was a matter of public concern one for the jury or one for the court as a matter of law we submit that it's a question of fact for the jury turned over to the jury because for example what  public concern or private concern sounds like a matter of law to me post a matter of fact i mean are you saying that juries could on the same facts come up with different conclusions on the same facts and  we have a particular statement and that is a matter of public concern or private concern you're saying that's always the issue of fact no your honor i was speaking about when speech is made pursuant to your job duties but when you're talking about whether speech is a public concern i believe that is a question of law but again if you if you look at whether it's made pursuant to job duties there are issues on four of seven of the factors yes there's an issue whether writing the report at home and submitting it on letterhead and giving it to the city manager whether that is going to go in favor one way or the other of speech pursuant to job duties the impetus again the timing whether whether it was a personal beef on its face none of the complaints made by mr de brito addressed him personally it addressed misconduct in office by the head of the department so his purpose was to protect the department protect the public and expose the corruption he could have spoken and he could have gone to the media he chose not to do that he could have gone to a city council meeting he chose not to do that because of his unique position as deputy director a that's how he had knowledge of the misconduct to begin with an outsider wouldn't have and be he wanted to honor both roles both his role as a citizen to protect the community and have these types of issues brought to the front but also his role in the public safety department to protect that department  continued functioning be successful and not impacted negatively by these behaviors so to look at the audience he he used the audience he felt was the best possible way but that but that choice should not impact whether the content of the speech is either public or private it's the content more that that's critical and the and the outcome when it comes to balancing the employers and the employee's interests the district court determined that the government interest was paramount however in this case it failed to recognize that mr de br eyes would have the district judge drawl not just all inferences in her in plaintiff's favor but that the standard is all reasonable inferences in the favor of the plaintiff and any inferences that judge quist did draw i would contend were not reasonably to be construed when you look at the entire factual record in favor of plain if you like that the question of whether the statement is a matter of public concern or private concern is for the jury to decide no judge siler the case law is clear that the matter of a public concern vs a private concern is one of law to be decided by the court and this case amounts to an employee dispute and i think that judge quest very clearly found that to be the case  speaking in his capacity as a public employee when he filed both of these complaints with richard lewis as this court has properly pointed out it was made on department letterhead and the argument are the complaint that he made was signed as deputy director during the course of his interview with city manager clap he pointed out this second allegation second narrowed by lane both of those were made within the scope of his duties as a public employee not made as a private citizen and the court properly found that as a matter of law do you think it would have been different if th later it might be a little bit better in his favor but i think that that case even still would be in his capacity as deputy director talking with his his supervisors supervisor and the personnel policy for the city specifically points out that de brito was to report to city manager lewis that is the chain of command and you can see that in the memo prepared by richard lewis which was attached to our motion for summary disposition so i'm just calling him out on the street i think that that's a little bit different there was a there's a six circuit case where the  speaker was contacting city commissioners and actually told them over the phone i am talking as a private citizen and i think that that distinction much more so  would lean that towards being privates are private speech rather than public speech as is the capacity of either or situation that you're either doing it as a private citizen or you're doing it as a public employee or i think they were trying to argue that maybe you could have a hybrid situation where you're doing both i think i think in the the situation where maybe there's a hybrid or a close call that it would that's what that balancing test is there for at the end and also that the adverse employment action would have to be that the speech would have to be a substantial or motivating factor and i think that those parts of the analysis helped to clarify the motivation of the speech and the context of the speech well the defendants contend that the speech especially the rumor that was being struck spread was also not a matter of public concern it was one of private concern when you look at the private speech and i believe that both instances are were made as private speech is opposed to public speech but in particular the rumor is  private interest tape that the rumor have something to do with the former city manager yes and why would that that that the public concern if it's the person who's running the city i'm not quite sure what the rumor was about the former city manager had something to do with them but if it had to him had something to do with him running the government it seems like that would be public we're looking we're looking at the substance of the rumor as the speech though and to officer watt and continued a rumor that had already been spread around the city and around the department mr de brito had romer was how he got his job was how mr de brito got is generally that the city manager was doing something illegal or the former no that might be a public concern if it if it had to be about the former city manager and that he had found out something about him that the public there might have an interest in  but that that's not your about how he got his job i guess but that's not the speech though the speech that mr de brito was complaining about is simply that his supervisor was bad nothing but he was that he wasn't qualified for the job but he'd gotten it through a door or something like that it's got it through some inappropriate manner manner and i think that that goes to a personnel issue i mean that isn't really a quintessential personal dispute the two managers didn't get along  that supposedly it was there was a forty thousand dollar donation made to a project of mr de brito as well as him getting his job from the previous city manager to mr lewis and  in that circumstance both of those things are true there was a donation made and he did get the  job but i would contend that that is really a matter of personal interest to mr de brito and that goes to i'm going to bounce to the due process argument while i'm on that note mr de brito has claimed a due process argument based on the injury to his reputation good name honor and integrity under med corpus the city of lima in order to analyze that type of claim the court has to look at five different factors whether or not the allegedly stigmatizing statements are made in connection with the loss of a governmental right or entitlement because there is no constitutional liberty interest simply in one's reputation standing all by itself the defendant also has to contend that the defamatory statements would have prevented the plaintiff from taking advantage of another employment opportunity now this is what i think brito argues in his in his brief he contends that somehow clapp statement about him privately to mr bott has created an uncrossable barrier for him from seeking future employment but the six circuit case law has very clearly held that just making a plaintiff less attractive to future employers does not constitute a liberty deprivation and i would also contend that the district court properly found that there is no evidence supporting causation between the statement made by class the interest between the public employer and mr de brito the district court properly found that the public interest in having efficiently disharmony among coworkers he violated a level of trust when he went outside the department to research and complain found that there was no clear violation of law as this court is also pointed out no clear violation of any departmental policy and mr de brito waited four months before he reported the shotgun  purchase to mr lewis maintaining a functional public safety department outweighs mr fritos interest in making the speech that he made  lastly and probably most importantly the speech has to be a substantial or motivating factor in the termination or or adverse employment decision when you look at the record as a whole when you look at the independent workplace investigation that was conducted mr de brito own conduct and his actions towards his fellow officers was the reason that he was terminated it was and he certainly found that there was no direct evidence winking mr de brito terminations to the speech that was made so even if you don't consider the facts and circumstances surrounding that mr de brito still has to have some evidence a scintilla of evidence at least to directly show that his determination of employment was caused by the speech that he made in the district court found that he has failed to do that on inference from it and that's what they're you know is it a reasonable inference and does the evidence overwhelm the other way and that's all i i recognize judge reasonable inferences in favor of the plaintiff that his two very minor inferences that you would have to make in order to find that it's a motivating factor or the temporal proximity and the one conversation that clap had with mr vaught saying that de brito had to go and without any anything more than that there's no evidence to support that individual defendants qualified immunity as this court has while we are is a given gives officials room to make reasonable even if those decisions are alternately mistaken as the district court pointed out  wayne had not yet been decided at the time mr lewis took his action and even if there was an underlying constitutional violation the defendants in this case could reasonably have believed unless there's a policy or custom which was the practice of the city lewis had the ability to hire and fire employees and he acted as a decision maker exercising his discretion just a couple of points your honour's first i would like to address the timeline for the rumor i believe perhaps sister council statements may be interpreted that there was some truth to the rumor and based on the timeline behind the rumor it couldn't have been true and in fact if it had been true it would also be a crime for an f b i agent to drop an investigation and accept money to do so but that was never pursued including by director clapper who was spreading the rumor and so the rumor was based on an allegation that there was an f b i inquiry into the former city manager walsh in two thousand sixty thousand and seven and there was talk later in two thousand and nine implementing a water rescue team in st joe in two thousand and eleven and the city began talking about consolidating their police and fire department and in two thousand twelve deputy to brito was hired as deputy director in that consolidated department for the rumor to work walsh would have had to have incredible foresight to say in in six years i would have a job for you if you'll get rid of this investigation and i'll give money to your water rescue team and initially mr de brito wasn't even the only person talking about the water rescue team and at the first city council meeting he wasn't even present other people were working on it so the rumor you're deputy bought concerning the rumor that he should know shared and admits that he should have shared it he was also they did come out with the policy they did change the policy for for the purchase of weapons that come into the department so he thinks he was fired in part because of a policy that that was implemented right after he spoke that there's going to be no tolerance for his book exposure of corruption in the police department oh sure you know you're talking about spreading a rumor not mean if you're talking about exposing corruption that would be a matter of public concern but here you're just talking about a private disagreement between two employees that he's spreading rumors as to why i got my job well i don't  see how that's a matter of public concern the speech was more broad though your honor the speech included the issue with the firearm the issue with the defamation and violations of union contract by deputy class i thought we only have the two i thought we had the firearm incident i thought we had the defamation i didn't third one there was also a reference in the complaint to violation of union contract by for example by delaying the sergeant promotion process which parcel he was trying to expose corruption he had inside knowledge that outsiders wouldn't have in trying to do that he was terminated the i w i was pretext which is demonstrated by a statement almost a month later by director clap to deputy bought that al had to go we just have to do it right timing is everything thank you thank you counsel the case will be submitted recall the next case