your honour's this is a simple case the pleadings are very complicated but the case is very simple plaintiff bernie was a dedicated nurse at seton medical center for twelve years impeccable performance no problems in two thousand and ten she started complaining about perceived contract breaches there was understaffing there's a lot of evidence in the record about wage an hour violations lot of unhappiness among the workforce and by may of two thousand and eleven plaintiff was very frustrated with the inability to take breaks and to take her birthday off her birthday was a contractually promised holiday the union contract promises that the nurses birthday as a holiday so plaintive was unable to take that day off prior to her shift on her birthday she posts an angry facebook post there's nothing unlawful about that post it's profane plaintiffs did submit a twenty eight j letter to update the court on developments that have been happening with facebook and facebook posts and it appears as if solid federal authorities protecting these these types of posts even when there is profanity involved when people are complaining about workplace conditions that is protected activity there was no basis for the terminations from seton medical center other than that facebook post she's a member of the union what was achieved yes this time yes and the collective bargaining agreement provided for mediation arbitration etc about grievances correct correct and she did not pursue those she did attempt to perceive a grievance the union did not assist her with that grievance they didn't agree it could be there isn't a lot of evidence about that they didn't pursue it the union itself did not pursue correct correct but plaintiffs should be able to prosecute an implied in fact a contract claim not only based upon her on the union contract but also upon the internal policies of the employer here we have a twelve year nurse that's at the top of the chain i don't quite understand that if if she's a member of the union union doesn't  press you're left with the free speech claim and that is what we should be talking about right i mean if the union didn't press the claim and the district court found no reason to honor if you're left with the free speech claim on the merits in the field to allow for amendment that we should be looking at right that you know we have a great body of law about judicial alchemy and how union members don't wave common law contract remedies because they're members of unions even if the union doesn't want to enforce the contract through its pathways individual union members should but i  mean there's a law on that there is you have to go through a number of steps and you have to you know gree have the union grieve the perceived wrong and have the union then take a number of steps and file suit none none of that happened here so far that's a matter of discretion that we give the district court and so really your strongest point is your free speech claim right this free speech claim is is strong yes  at the same time there is a long line of precedent including supreme court precedent about contract why didn't she sue the union she's a member of the union now i mean it's hard to translate legal remedies to working people let's assume that's not a problem ok she brought a state court action right yes or is that as we speak that is pending appeal after a trial in with her inclusion into that well robert feldman when it only applied to the state defendants and that it's procedurally it's very complicated because plaintiffs did everything she needed to do to relief nothing should allow the state to chill free speech rights that should be directly enforceable injunction injunctive relief for you seeking against the california unemployment insurance appeals board that it not deny benefits on the basis of a lawful out of work communication that's free speech protected it has any  federal case that allows a federal court to do something like that to issue an injunction against a state border agency to tell them to do a specific thing x ray young provides that not immune under the eleventh amendment because you're seeking injunctive relief and is that right yes that's right and they're also us also saying that which plaintiffs did england was saying we prefer this to be heard in the federal jurisdiction if there's going to be a constitutional decision made particularly on the first amendment to the united states constitution that should be made by federal courts not by state court  feldman the hearing and the holding in feldman was that it that decision is should be reviewed any decision that that's in question should be reviewed if it's legislative quagmire if a plaintiff fails to file the rick claim can never be heard in here because plaintive did file the writ as required the court said it can't be heard but plaintiff is not challenging that  final administrative decision in writ of mandate proceedings in san mateo superior court that was simply exhaustion of the final remedy the challenges to the decision which chills free speech rights and which actually held the administrative law judges decision even though the employment development department initially awarded benefits because this is something that typically benefits would be awarded for a fa book post that doesn't suggest anything unlawful cannot be a legitimate grounds for denial of employment benefits that's not an appropriate and not misconduct under the unemployment insurance code section two hundred fifty six it has to be workplace conduct here free speech is implicated particularly because of the the reliance on the union contract particularly because plaintiffs have been complaining consistently about do you think it was inappropriate for the hospital to read the post through yes even though the post says she wants to ground or something like that something like that right it's it's it's taken out of context it's at least somewhat humorous it certainly wasn't deliberately delivered and if we look at the supreme court  ilana's decision i'm not sure from pronouncing that name right but with what it looks like from a law miss is that in order for criminal charges to be brought there needs to be some mens raia the threat needs to be communicated the threat needs to be intentional intentional and some way either deliberate or reckless and here plaintive was simply frustrated you don't think an employer discipline or terminate an employee for for a threat  amount to a criminal that's an excellent question and ultimately we get paid for it in this case maybe a day suspension i mean this is a twelve year nurse at the top of the pay grade training other nurses she provides excellent care they had a progressive discipline policy which plaintiff relied upon so would any first of all would any disciplinary action be a chilling of free speech yes it would be but would take action on that would does it make sense that to bring that claim here no one ever reached the merits here right and right you may very well have a point but i guess what i was trying to discuss with you earlier is that the the union never sued on the contract the plaintiff never sued the the union judge hawkins and you were discussing the fact that by the california constitution privacy clause is taking information properly obtained and using it in an improper fashion that's a legitimate basis that goes against private actors defendants in medical center is arguing sued under the california constitution for free speech that's why we filed the motion for certification potentially to the supreme court at that issue needs to be decided only those who are in protocol for an issue decide it but we should be given the chance to be heard on the merits on these claims had we been given the opportunity to argue i would have brought to judge wilkins attention that the privacy claim under the california constitution should move forward if not i agree with one thing counsel for cullen said and that is this is a simple case this is a simple case a misquote are was terminated after she posted a threatening message on facebook that concluded i would do with regard to her manager i would do anything to smack you down and pound you we we've read all that obviously but but it seems to me that as i was discussing with ms is panto at the end  the question is really legally whether or not this woman has been denied at least a motion for summary judgment on discovery or  elucidation of the merits of her claims there are a number of procedural issues that have denied her the the right of the ability at least maybe not the right to do so  on the basis of the california constitution free speech clause to prohibit her from doing so yes the golden gate way center versus golden gate way tenants association cited in our brief could not be more clear now that golden gate was a plurality opinion so i'm not sure that it has presidential effect here it was a plurality opinion on her but it it there's not a single opinion that that a pellant can point to where any california court has said post that decision that has suggested there's some private right of action for free speech and luckily in light of the absence of controlling authority to certify what do we do i your honor i there's a i would not think that certification would be appropriate in this case there's this is not a case where there's divided authority there's not a case where there is some decisions that suggest you can have a private right of action for deprivation of free speech under the california constitution but there does seem to be a wave of decisions you applies that it doesn't apply to private act that they did that it does apply that the that article one section two the free speech provision applies to does not apply i think that's where the way is not applied that's right that's right exactly and that's what was recognized by the california supreme court i mean now you're saying that's enough for us i am saying that's enough your honor i am and they're very clear they they reviewed the legislative history neither the text of the free speech are a b was not brought or dismissed in a separate proceeding we wouldn't have jurisdiction over the claims you're talking about right correct none of the parties california the free speech clear correct the and with regards to i don't know if your honour's would like me to address the breach of contract claim if you have any questions about that to me it's very clear she has four actually states it's a standards of conduct in corrective discipline policy but it says it applies to all associates in less otherwise dictated by a union contractual agreement means the policy she's pointing to did not even apply to her i think the law is very clear that when you're seeking breach an action breach of contract based on your union agreement it's preempted by thaksin three zero one if she you know after the statement in the facebook posting about your client consider and considers to be a threat if she had put in for a joke know what your position my position would be the same your honor because philip wrote even though she said joke well my position from a legal perspective in terms of what she can and cannot pursue would be the same at heart she's trying to pursue a breach a wrongful termination action her employment contract through the union agreement addresses when she can be terminated or cannot and in terms of her let's i was one be really clear she's had a full and complete day in court she had a trial at the state court where her claims were addressed on the merits somewhere dispose of summary judgment three claims went to trial on the merits she has had her day in court and with regards to this know are protected under the n l r a that's garman preemption and the court would have jurisdiction over that either that or even if she had said in the rant but what i'm about to say is a joke and then she  that your client considers a threat you would still consider the threat i'm here your honor i don't know what seaton would have done and that is really the question but i just would remind the court they called the police and the manager in question got a temporary restraining order went to court and got one so someone a judicial officer concluded it was a serious threat yeah well i do want to give my time to make so we did raise the eleventh amendment and we believe that based upon the eleventh and then certainly the c o id is out the entity itself has total eleventh amendment immunity and then in terms of the executive liability under under the eleventh amendment he the only think she could bring under eleventh amendment that would be exempt from it would be some kind of ex parte young relief but again as the court pointed out that type of relief that she was seeking is really just not feasible stop the c u i'd be dresser or somebody from enforcing these general kinds of laws in the future i mean we're talking about this one facebook post we're talking about one see a decision on it that actually went up to the superior court let me just give the court briefly a little of what happened so we're clear procedurally so you had the employment development department who made initial determination about benefits and actually found that she was entitle to benefits but that's not the final arbiter of that in state court the final arbiter of that is the unemployment insurance appeals court and that's after an evidentiary microphone for some reason you're cutting out oh i'm sorry and that's after an evi hearing that was granted by administrative law judge there what was before that court was the issue of misconduct in california you get unemployment benefits unless you're terminated for misconduct while i'm booming you are ok so misconduct under precedent benefit decisions before the unemployment insurance appeals board includes a duty owed by an employee to an employer and that duty could be set forth in an employment policy and seaton's employment policy basically said that that employee should not make threatening  or abusive statements regarding the workplace so that ended up being a violation of that policy and therefore was misconduct so  took the case as she was entitled to by california statute up to the california superior court by rid of administrative mandate and but at that time she fail this money it would come from their reserve account so imp employers are actually real parties in interest so the court found she did not timely name seaton nor could she ever timely name seaton because a six month statute of limitations had run so then therefore there was a judgement and in that judgement that had the in other words the court to stay the demur without granting leave to amend and we got a judgment and basically what the judgment did is it stated that there that i was not entitled to unemployment benefits so coming then into federal court vera seeks to undo that judgment by the relief she's seeking and that's exactly what rooker feldman does not permit i think i've addressed the courts issue about injunctive relief and see you i'd be having immunity and then vera was claiming that the cia be writ to the superior court that's a period of court action is an administrative action that's just simply not true it's a judicial proceeding with the judge present proceeding over it so i'm not sure us clearly we're the before the administrative the unemployment insurance appeals board that was an administrative proceeding clearly by the ministry of la judge or the unemployment insurance appeals board in affirming that decision so that's really at the crux of this at the heart of it all and that should have been that appeal through the superior court that she failed to to pursue properly procedurally and so she can't now sue them in federal court because they have quasi judicial immunity from suit thank you thank you ms miers arguments that the the original decision then was evaluated that was at the behest of seton medical center so seen medical center contested plaintive core marez receiving of unemployment benefits they said this is misconduct at which point plaintiff did appear and argued for her her rights that this is not work misconduct at all it's out of it's lawful out of work conduct that did not harm would be content with that relief but ok can i ask you you were not given an opportunity to would you tell us in a minute or so would help avoid that can there be action taken against a private employer issue there is no question on privacy against the state i would put more of these cases in that show that this is this