service employees and that may be the rule for civil service employees in general the rule of the required due process for terminations can be varied by a collective bargaining agreement there are certain things that are given the collective bargaining agreement  certain rights that are taken away or waived when the agreement is signed and a collective bargaining agreement can vary the requirements the due process requirements for pre term a nation notice and a hearing now here are the collective bargaining agreement which govern the terms of mr swain coin it didn't have any express provision in it for pre term a nation notice or pre term a nation hearing what it did include was an level disciplinary levels to be applied sequentially but that clause didn't provide any requirement at all for pre term anation a priest disciplinary action i should say notice or an opportunity to be h so this presented a question of contract interpretation and collective bargaining agreements are not easy thing for the average layman or town board member in this case to interpret on their own and the interpretation question presented by this particular collective bargaining agreement was whether the post disciplinary action memory that was provided under the arbitration clause that it's fide to grok there was at most at least an open issue as to whether the collective bargaining agreement acquired on the other hand waved the right to a predetermination notice and hear now in regard to that open question pound their turns to the town attorney david wise is an experienced naval attorney is over thirty years of experience and they're going to town for quite a while and mr wise read all the collective bargaining agreement and provide an opinion to the town stating very subject to interpretation interpretation beyond the ken of the average layman they turn to their attorney the attorney who's knowledgeable and able in this area of law provides an opinion which is at least reasonable it's not like there's some provision a which says that you have to have pre term a nation this or hearing and under those circumstances there should be qualified immunity your concord members should be entitled to rely upon the unclear language in contract and the strong opinion position that the proof on this issue with you to completely unsubstantiated or irrelevant when you look at the court's decision the district court's decision as to why there's an issue of fact as to pretext it really comes and in regard to that the court pointed out claimed that mr between objected to the dismissal of swing but when you look through the record carefully i think you'll see is since there is no point to it there is a potential criminal investigation pending i will not be terminating troy swearing as recommended by david wise esquire but will act in accordance with the disciplinary procedure outlined in the collective bargaining agreement all of superintendent he said no the complaint came to you so the town board should fire him in this e mail he doesn't say the town fortune fire him you know mr swain isn't responsible for any long doing or raising objections like that he just as he personally wants to wait until the criminal submitted was unreliable but that didn't happen until literally years after the town boarded act and unemployment for finding doesn't in any way show that the photos or videos themselves were facially unreliable or even suspect and the other was well sorry i'm sorry my mute was on strike yes counsel what aren't you didn't the district court determine however that there were facts and dispute the district court reporter to determine if there were the facts that the district court said were in dispute and tell us why they are not well the district court that in regards to the the qualified immunity claim regarding due process there is an issue of fact as to whether the town board members could objected lee reasonably believed that there was  process violation if they did not provide pre term a nation notice in a pre term nation here and the reason the court found that there was an issue of fact on that was that it misinterpreted the provision in the contract arbitration there shall be a five step discipline process one morning two written remand three suspension without pay for up to three dollars days for suspension without pay for no less than dollars and no more than ten days five terminations any action on the part of an employee which in dangers the health of the safety health or welfare of another employee were citizen of the town shall be cause the start except for five disciplinary level level of disciplinary action that can be taken but as you can see the text of that doesn't provide for any pre term in a supreme position of disciplinary action notice proper to need to be heard so for example before  warning is issued there is a notice provided to the applicant area warnings going to be issued and put into your file because we feel you've done this improper thing and then have an opportunity to appear before the town board or apartment had and could test it in the same is true for the step two which is written district court was wrong on the st point that that's why they're wrong and that was why it was wrong and binding that initial fact exists in the ground or to the due process claim in regard to retaliate and claim i just went through the fact that the court ok thank you i think that's all i have  points to process least at this point i mean there are other claims in the record but i mean i can regard to qualified immunity on the federal claims that breaks down to two point due process and retaliation due process yeshu is simply whether in the defendant's view the c d a left open the issue of whether the union employees had bargained away their right or pre a nation notice and pre term a nation hearing now if there was no c b i as civil service employees there's no question that they would have a right to pre term a nation notice in the pre terminations hearing but the other side of the coin is that if they were disciplined the employing municipal board of the government board would have a panoply whatever disciplinary level of a thought was appropriate d available to reading this contract wouldn't it would not be clear to them unless they were a skilled labor or lawyer that pre term a nation notice and pre term a nation hearing had not been bargained away because the case law is pretty clear  defendants you anyway that a collective bargaining agreement can vary the otherwise applicable due process requirements for terminations or civil service employee interpretation that contract is a question of law and again in the defendant so it's not a question of whether the town board members were correct in their reading every reporter mr wise was or not it's a question of whether or not a contract can reasonably read and be read as as omitting pre term a nation notice and pre term a nation i gather not to let us hear from opposing counsel and your fellow may please the court can you hear me yes thank you mr swain suffer when suffered discrimination he complained about it and he was fired and he was entitled to due process before doing so now the very st step is to consider this court jurisdiction notably nothing in the moving briefs considers this question or address to the jurisdictional issue and in fact very little in the reply brief addresses that after the brought it to the court's attention and if you listen to two key statements that the attorney made he said look through the record carefully he said search the record and i think those act go through the record in detail would be an unnecessary in this case i believe we have approximately two thousand pages that were reviewed carefully by the district court and came to a determination in effect these cases can be decided on appeal by looking at the point of fifty six dollars statement which are the facts that  are accurate and true d in the judge's order and with that you can determine issues of law and through that lens none of the arguments that we heard would survive the entire appeal rests on the defendants asking this court to comb through the record give the on the other hand they're staying but through this vagueness in fact mr swain had no preacher terminations due process rights and that's simply not accurate the a collective bargaining agreement can alter that process but it doesn't completely eliminate someone's pre term anation rights in fact this court has said over and s pre term nation notice as a requirement but this hearing is shifted to aster determination and here mr swain just didn't get that he was never notified he was found out he was fired after it already happened and in fact this case is a perfect illustration of why pre term a nation notice which does provide a way to be heard meaning you can hire a lawyer you can go do you go yourself and tell people why you shouldn't be fired and address the accusation you don't need a formal hearing for that and if they had he would have been able to explain attorney to interpret whether or d not there's a notice provision i don't think that all of the steps before terminations in the c v a serving notice function yes it doesn't use the magic words you have to give somebody notice but a warning is notice an idea that anyone could believe that the c p s somehow bargained away the pre terminations notice requirements assuming that that be legal under the due process clause is it reasonable no one could reasonably look at all of the different steps and say i don't have to give anyone notice at the end of the day there's nothing reasonable about the time decision to simply disregard the c b i and fire him and i think it's in fact worth looking at the record and this is a dash eight hundred and seventy three the last e mail by mr swain where he says i will not be terminating trysts wayne and goes on to say that he will act in accordance with the disciplinary procedure as outlined in the collective bargaining agreement with the town of weapons or now when the board received that email the only reasonable option would be to go to their attorney david was to say what does this mean what do we do with the collective bargaining agreement they couldn't do that they didn't fully apprised their attorney the fact instead they asked a very narrow question which is do we have to give them a hearing before hand and the answer is no they didn't ask them well what do we need to do and if you look at the district court's opinion the district court drilled out on that exact issue and found they never asked about whether or not there was notice and because they didn't ask that specific question or follow up regarding the collective bargaining agreements d or the objections by mr beattie that there's an issue of fact as to whether or not determination or ignoring the c b i in terminating mediately was reasonable and it wasn't and there's an issue after trial and the retaliation question i believe is even less complicated retaliation is always proven through circumstantial evidence because intent is almost always proven through circumstantial evidence it is very rare in a criminal case in a civil case that somebody openly admits i did this intentionally this was action intentionally and district court evaluated the various pieces of circumstantial evidence including the fact that he was terminated very shortly only two months after he started lodging official complaint the fact that they took away his truck the fact that they collective bargaining agreements that there is no record that they're actually trying to force mr putin is to do the terminations which suggests that they understood that this has been an issue and ignore the fact that you had a good work record it's a jury hears all of this they could infer that there was and that is a classic issue or fact and one that this court shouldn't be reviewing on an interlocutory pill i think it's also worth noting that in fact attorney was warned them warned the board that this is going to look like retaliation and they want to head with it anyway and not only did they go ahead with it but in fact they skipped over the various steps the collective bargaining agreement that would have procedural there are issues that back here they're for it was improper for the defense to ask this court comb through two thousand pages that the district court had already th rendered by counsel provided that reasonable objective basis it may well be the case as the district court found that isn't title to pre term a nation and pre term a nation hearing but that's not the issue the qualified immunity client question is whether the board could reasonably but he didn't and we submit that we always it could have done so the claim that the provision in the c v a providing for warning somehow provided notice simply doesn't hold up to scrutiny warning is not a notice provision as provide as set out in the collective bargaining agreement using level of discipline as we lay out not apply grief if you give someone a warning because they were tardy in november  suggest that as we had explained in our brief than in our argument now the evidence is simply either unsubstantiated or irrelevant for example how would his good work record be circumstantial evidence determination for theft of time which pretextual the event that you are contesting the existence of a tribal issue a factor called a qualified immunity with material issues of fact materiality excuse me this is a fact again a fact that the district court that's relevant and unsubstantiated facts