employment among other things this means that due process requires that he be provided with a timely post terminations appeal to the city of pickerington provided him with an appeal more than three years after he was terminated this is constitutionally insufficient and the district court court ruled that he wasn't title to the other week quite that within this time period i'm sorry your honor who ruled that the first court that or heard this not supreme court said that he was not entitled to well they didn't the court the court of appeals on the mandamus action did not rule that he was not entitled to the hearing it ruled that he was not entitled to mandamus because he had an adequate state court remedy the court of the state court of appeals felt that instead of filing mandamus action he should have appealed the city's decision to deny him the hearing to the common pleas court because under ohio's administrative proceeding process after you go to your civil service commission when you appeal the terminations a classified employee you can appeal the civil service commission's decision to the common pleas court so when the court of appeals denied mr lane's application for writ of mandamus it wasn't saying that he had no right to the civil service appeal it was saying that the proper way to achieve that civil service appeal would be to appeal the city's decision what effect is this delay well that that that's the justification for the delay that the city of circus the city of picturing states admits because it's factual there's no way to deny it that he was not provided with his civil service appeal hearing until more than three years after he was terminated and the city says that that's justified that's not an unconstitutional delay because this state court litigation was proceeding and that's what caused the delay while under the malefactors f d i c vs maleness the supreme court case addressing when a delay is constitutionally permissible and mallon asserts three factors the first factor is the importance of the private interest here the private interest involved is mr lane's employment in the case law is universal and defendants concede that and continued employment is d employee of their livelihood as a critically important private interest the second factor is the justification offered by the government here that goes to your honor's question about whether that justifies the delay in our view it's clear that it is not because the delay here is the city unlawfully denying him his appeal and then fighting a losing battle in state court to enforce that unlawful decision ok if that were a justification then a city could deny every classified employee's appeal force them to go through state court mandamus proceedings simply to get the appeal that was a right all along every appeal would be delayed by years because you have a lengthy litigation process and say sorry about th delay we were tied up in state court after we unlawfully dis denied you your appeal it seems clear to us that that justification of saying we were in state court fighting to continue our denial of due process to you is an incredibly weak justification for the delay and the city has been able to cite no case in the history of due process jurisprudence that finds that type of delay to just that type of cause for a delay to be justified and do you have cases going the other way well there's one is brown vs bad is from the one nine hundred seventy s and it is pretty loud but that is a case in which a teacher was fired a female teacher was unmarried female teacher was fired for becoming pregnant and she claimed gender discrimination and she filed suit with the nebraska equal opportunity commission that ruled in her favor and the school district appealed that into the state court system the state's court system ultimately ruled that she did have the right to the civil service appeal that she was denied ordered the school district to provide her that appeal and the appeal happened two years after she was terminated and in brown versus i believe it's in a circuit case that maybe ten circuit cited in the briefs the court said that two year delay which was caused by those state court proceedings was an unconstitutional delay the third malefactor is a likelihood that the interim decision was mistaken the interim decision being the decision to terminate palling that is what pauline was trying to appeal to the picture in personal appeals board the civil service commission and that dissed interim decision turned out to be a mistake and we now know that the likelihood of an interim decision being mistaken there is one hundred percent he eventually received when he had his hearing they reinstated him in a lower position yes and did they address the backpay issue has not yet been addressed so  they i understand they didn't award it but was that something that was within their jurisdiction to addresses i tried to address it at the hearing they refused to let me the theory being that they should automatically reinstate him with back pay and if they fail to do that we have to file another state court mandamus action to force the city to do it and did you do that we have not yet done it the civil service commission's decision is on appeal the civil service commission's decision reinstating mr lane was appeal to common pleas court since the briefing in this case it has been affirmed the city has won and city appealed the city appealed that decision you didn't file across appeal did not file across appeal  the common pleas court affirmed since the briefing in this case the civil services civil service commission's decision to reinstate him and that decision has now been appealed by the city to the state court of appeals so question is separate the state court proceedings deal with whether or not he was properly terminated they don't deal with his due process rights the federal district court here is charged with ruling on mr lane section  that his due process rights were violated in part by the failure of the city to give him a timely appeal so that is your timely post terminations appeal issue that is correct is that the only due process issue that you have it is not we have another very important due process issue yonder and that is pre terminations due process violations the city's process when they terminated paul and obviously under louder classified employee has rights to pre term anation proceedings and due process and post terminations due process in the form of civil service appeal we argued that mr lane's due process rights were violated not only by the failure providing the timely appeal post terminations but by the process the process that was provided to him pre term each and the district court granted summary judgment for the defendants on the grounds that that claim was not properly pled and what do you rely on in your complaint shows that it was properly plaid shorts your honor which as background the cummings case in the bourne hearst case from this court or what guides the the investigation into whether the complaint properly asserts claims and the under cummings in born hurst we think it's clear that the complaint here is at least ambiguous and what i rely on are primarily i would say three things  when the complaint lists its due process cause of action it states deprivations plural of due process of deprivations plural of due process which indicates that it's not simply the one deprivation of failing to provide a timely appeal but multiple deprivations the second thing i would point to is paragraph thirty seven of the complaint there is a legit defendant knew that the charges against mr lane were unsupported or insufficient to justify his terminations why that speaks to prevent pervasion due process issues is because part of our argument on present provision due process is that they claim to have terminated him only for these offensive images that were found on his computer but in reality there were he says that in his deposition in this case but there's substantial record evidence to refute it for one thing he admits that it would have been improper to terminate mr lane only for thirty arguably offensive images found four years previously and that's all they actually had in terms of the pornography that was found in mr white's computer in mr lane's terminations memo that chief taylor wrote he said not only the issue about pornographic images but he said paul lane has created a hostile working environment that's in the terminations memo sent from chief taylor to linda first the personnel director additionally in trying to deny mr lane unemployment compensation from the state chief taylor wrote the state a memo that said that part of the basis for the terminations was sexual harassment by paul lane but he was never notified of those charges and never given his loudermilk pre death pervasion rights to address them what did his terminations letters say was the cause of instrument i don't know off the top of my head there's a terminations memo from november second two thousand and nine is that a memo internal it's an internal memo then there's a november fifth two thousand and nine letter to pauline i have it on my laptop that i can fire up all the defense is arguing and tell you i can't tell you off the top of my head i think it says nothing i think it says you're terminated as of today but i couldn't swear one question that i have is that assume for the moment that you lose the timely post terminations due process just assume that ok what this soon that you were denied terminations notice what would be your is there's an argument strong argument based on case from this court that mr lane is entitled to back pay until he receives the due process that he was always required but what i'm assuming  and i'm this is a hypothetical i understand totally i'm assuming that somebody gets actual proper post terminations hearing yes but was denied a pre terminations due process whether it's notice or an opportunity to be heard what kind of remedy should a federal court give under those circumstances so the finding would be that it still is a due process violate right and the remedy might be simply nominal damages for the constitutional infraction but it may be that the damages differ because it's potentially the case that when the civil service commission on the appeal an adequate loudermilk post depravation appeal reinstates reinstates the plaintive that the back pay award differs from what the back pay award than from the back pay award that the plaintiff would be entitled to under federal due process of law so there might be additional damages ok and i know your time is up but one question that i had in looking at the complaint complaint refers twice to the settlement of the first federal action what is that refer and i have no idea i  did not represent mr lane when when the complaint was filed i just was worried that i was missing something fundamentally or not missing anything i suspect that prior counsel had copied pasted from a different complaint and is referencing something that just doesn't there's no other federal action that you're aware about there's no other federal action and judge moore if i could just before i sit down there's one other point in the complaint in response to your previous question i think it's important to refer to specifically and that's paragraph forty four paragraph forty four of the complaint allege the defendants failed to follow the principles of notice notice is of course a fundamental due process requirement it has no application to the post terminations appeal the reference to failure to follow the principles notice is they failed to give him notice of the sexual harassment allegations they failed to give them notice of the evidence against him because they didn't show him the offensive images that they found on his computer they failed to give them notice of the preved disciplinary hearing sufficiently in advance and it's those issues that are the notice issues in this case so as another basis for finding that the complaint is at least ambiguous as to whether the search they predict provision due process claim thank you thank you please the court my name is frank scaled down i represent the city of pickerington i will be taking the first ten minutes of time and mr landis represents the individuals be taking the remainder of the time  as an initial matter i did put my hands on the terminations letter and that letter does not reference sexual harassment it has to do with a violation of the city's personnel policy technology section and that is that it can be found to document our forty one down three page id number one five seven one two of the main issues in plaintiff has a stablish a mono claim against the city of pickerington with his post deprivation due process claim the district court expressly held in reviewing the complaint that there simply and i'm quoting there simply is no indication from the complaint that plaintiff intended to pursue a claim based on violations of his due process with respect to create deprivation proceedings what about paragraph forty four forty four i'm sorry what was simply paragraph forty four of the complaint says that his determination was not justified in light of the failure of defendants to follow principles of notice and progressive discipline the principle based on what is previously said before maybe it's part of a pick up on a previous complaint filed by the prior council you know i don't know what that is specifically refers to and it basically under i think that the overlay here with its own twa is certainly that that would be can completely speculation what that refers to it certainly doesn't state in light of the other allegations in the claim anything that would create a claim for deprivation due process can you still have a course of the proceedings kind of thing so that you have the summary judgment materials being developed and everybody is asking questions about probation notice why is that  of the caves you know that's an interesting question i think i think with a ball and why it makes it the cummings case that were referred to in the harris case and the things that kind of come off the cummings case were decided before it all so i think that that claim there of ambiguity i think it's heightened along with the standards that are set forth in it and i think it's it's fair to assume in this court is has said this in previous that if the facts have not been specifically alleged it's fair to assume that they the that they didn't exist and in this case you know i i think the district court in a review of the complaint the district courts review is right on there simply is no there's no ambiguity there it's just a pretty i mean a post deprivation due process claim in any event the pre depravation even if you assume that it somehow makes it into this case the only things you know predisposition hearing is not an elaborate proceeding it requires notice of a charge explanation of the evidence and an opportunity to be heard and all of those things were satisfied well he asked to see what it was that he was fired for ok signal i can chill it but it was clear and there's no requirement that he has to be in this in this context that he has to be provided with the pornographic images and in any event i'm sorry go ahead are you supposed to respond to that you don't think you didn't think it's of look what are you talking about let me see the pictures you're talking about no i'm sorry can't do that perhaps in a different i mean present a different circumstance that may have more impact here he just it was a flat out denial i never looked at any pornography i never accessed any pornographic websites which the investigation demonstrated was was not correct that he had that was on his and in task couldn't that be an interpretation as to what is pornography i mean in this case i think that while there are some where there's kind of an on the edge of this case based on the images i don't think that there's how did he know what well it is your people shout again but he said i mean he his response would have been just none of this was i mean i didn't i didn't do it just flat out denied ever receiving any kind of suggested images at all the plaintiffs here knew the seriousness of the charge and it could result in dismissal and then the city manager mike taylor didn't believe his explanation in part on the grounds that he's got it he's saying that somebody else asked access my computer is a password protected computer and there was some suggestion that he may have received some suggestive photos from his home e mail at work in any event even if  claim makes it into this case a believe that the pre deprivation due process was adequate turning to the post deprivation of the claim i think that there's a fundamental  flaw with the claim in the sense that this is a mono claim against the city as an entity entity claim and there is no response is well established there's no response yet superior liability  stating but so you're you're suggesting it's a final policymaker type situation is this their position the supreme court of ohio in its went in this is in the proceedings the supreme court of ohio concluded that the law director did not have the authority to make the decision to deny the hearing so in this case i don't believe he can be considered a final policymaker it's really a board in this circumstance but they they let him but he still doesn't have the he doesn't have according to the supreme court he doesn't have the authorisation to make that make that decision to deny that hearing it can only come from or you're saying that if somebody in municipal government makes the policy decision and everybody follows that it doesn't count from a money liability if it's later determined that the person didn't have the authority i think in this circumstance that that that is the case and this isn't a this isn't a claim where there's there are multiple like there's a policy in practice of the city you know i think there was some suggestion that one of the you know well this isn't a claim where the city is denying classified employees their hearing rights time after time there's not an example of even one other suggestion of that and there's certainly no demonstration of any kind of bad faith here so this is a somewhat unique instance in this circumstance and again turning back we believe that the supreme court of ohio's decision provides pretty solid authority for that argument plaintiff argue in the briefing that this claim is wait that's simply not the case it was raised and in the summary judgment briefing which is our forty one at page three and that was our brief in opposition to his oh no i don't believe so and again you know turns into whether the delay was a reasonably justified and here mere delay even the delay in this case does not equate to a deprivation  a violation of due process here we're talking about the the slope turn in the slow process of the mandamus proceedings it doesn't create a violation of due process and there's no i've seen no suggestion in here that the city somehow other than disagreeing with the classified status was in any way trying to delay these proceedings in an any way shape or form it's simply not in the rocker and i mean if but to answer your question that it's a case by case determination there are several cases that we cite in our brief a twenty five page twenty five or a brief where you have significant delays as a but your co counsel have time and i do thank you for your consideration on here for three individuals who have been named as defendants in this case i wanted to address just very briefly the pre term anation matter the post deprivation seems to have nothing to do with my individual clients who were functionaries that at that point in the city three defamation i want to make two points that had not yet been made one is was that pled in what is the meaning of this later paragraph about notice and justification we are we've not mention here that there was another claim in the complaint as well that was a claim that there was a first amendment retaliation claim that was dropped because the first amended protected activity was allegedly that mr lane was a friend of somebody else at the office and they realized that that was not going to work but you have allegations in the complaint that were appropriate if you think about the fact that they had to show that there was not a non discriminatory or non retaliatory business reason for the firing and that's my explanation as to why that soon there all of the other due process allegations are in paragraphs seventeen through twenty two so you have all of those now allegations about post operation due process and then you have this outlier here the talks about justification including notice and that's my explanation for what that means and there your honor as to as to not having the actual items laid out on the table during the pre death probation hearing chief taylor understandably didn't want to throw that on the table in front of linda first  in the plaintiff here and i think that would have been very meaningful and could have in fact caused a due process violation if there is any question about whether or not the images were themselves pornographic if there was an honest contest as to whether or not those images being on the computer would have violated the policy of the city that would be a very live issue however there in the record and nobody's ever made such a claim because of the nature plaintiff's reaction to them which was i didn't do it but if i did it would have been from opening an e mail it doesn't the actual substance of the images themselves are not in contest in the same way arguably one could say if if the concern of the employee who's being confronted with having improper images is what images are they because i get junk from people and you know spam comes in and so forth and maybe knowing that there are these images would cards that person just say oh yeah i got that awful spam from somebody and i threw it out immediately i mean there could be defenses that an employee could raise that could resolve the matter at that peak pre death probationary fare is very fair here we had thirty images viewed over the course of two days and evidence on the computer this is what's in front of chief taylor during the hearing an investigation that indicated that since that time there had been destruction of history where history had been deleted there had been additional software put on by the individual user not the city that would allow private browsing so as not to create further history and that was up presented to employ at the provision i do not know that but do not know that that was in front of the chief as the investigation from the person who watched the computer being viewed whether that came out i do not recall off suddenly had with it's in the record as to whether that was shown to him but he was told these were found did you violate it the chief also had the other aspects of of this gentleman which impact on the only claim that applies to the individuals alone so i should address it that's the defamation claim unless you don't want me to but it the chief had available sworn statements from four women that said things like he talked about breasts he talked about masturbation i was so bothered by him that i went outside the building  little round to go to the bathroom so i didn't have to walk by as doorway he had his pants off in his office it was a shared office but was that presented at the pre determination hearing any of that  he basis of the letter either right zack lee exactly in counsel has represented it accurately it indicates that based upon the investigation his admissions at the hearing in his lack of response to them  to rebut the those that it was found that he violated the policy on viewing pornography there is no mention at that letter of anything else in the court limited the allegations on defamation to that letter paragraph thirty five of the complaint is the only place in which there is an allegation of defamation in paragraph thirty five references only that letter which as we had a hearing you're being fired for violating the policy and that's all it says and so while there are many other allegations and things like unemployment and memorandum in the file and that sort of thing the only live allegation for defamation is what you have which is in that letter and so again there's the question of whether the course of the proceedings should expand the defamation to variety of items that are listed in the brief here are we following ohio  procedural issue that the federal courts need to decide even in a case like this where you have a supplemental state law claim so the pleading requirements would be determined by federal law whether or not once pled it amounts to a claim or has found in this case privilege because there was a duty an interest in the chief in issuing this letter which he asked for he asked for a letter and that's what was the in the letter that there is a common privilege that protects the chief in writing i believe that you violated the local policy with the other items that i mentioned that were in the record the chief was certainly justified in saying the other things thank your honour's i'll try to briefly run through a rebuttal points at the district court level the city never argued that the pre term anation due process violations were on pled only the individuals arguing the city acts like it's clear and their position on appeal but they never even took that argument before the district court it ball in twamley does not change the bornhorst cummings rules about ambiguity under in this could this case was filed after it but they had every right to f correct collect telegram and then they should file a motion to see what you really after i mean i think that's clearly one motion for more definite state where there are certain sense but if you f of the mental state to be able to read to overcome the munity recklessness or malice or bad faith in chief taylor testified in his deposition that he had no legitimate basis to know he did not investigate whether created a hostile work environment and he had no legitimate basis to assert that he created a hostile he was told well he was told that the women were complaining he had that information but he didn't investigate it he testified that he didn't investigate it because he was terminating mr lane solely on the basis of the offensive images so i said to him but there are two sides to every story right he agrees and i said when you need to do an investigation before you can find the claims like that are substantiated and he says yes and i said did you do such an investigation have no legitimate basis to to to conclude that he created a hostile work environment and he agreed so he's asserted asserted the fact that paul created a hostile work environment without ever having investigated and with his own acknowledgement that there's no legitimate basis for that assertion in terms of the city saying that menow was not waived below i will note that where they say they raised him and now was in response to our motion for partial summary judgment its is a distinction with a difference the city's motion for partial summary judgment never raised and now if they don't raise it in their motion for summary judgment it cannot be the grounds on which the district court grants summary judgment or the grounds on which this court