please the court my name is marie maddox counsel for the appellants in the issues before the court today or whether the trial court correctly granted summary judgment on a multitude of issues one of which is whether dr king was speaking as an employee rather opinion about whether mister was ready to do the work and could do the work safely that well judge if that was the only thing that she had reported then i would agree with your honor but that's not only the initial report she says about whether he's fit are not fit is covered by garcia it is and the interference that was not covered by there were two issues that she reported and this is even when it's covered in our brief on page thirty two in the  brief the county manager mr freeman had testified when i asked him in his deposition whether there were matters that were outside of her job duties and he answered yes that reporting reverse discrimination would not be part of dr king's normal job duties and reporting public safety concerns would not be part so the cases that we've relied on started in our briefs don't say that you have to be public safety concerns right arising whatever that guy said and the county manager had said that reporting these public safety concerns was he did not consider those as part of her ordinary job duties just wrong anything that requires her to report whether somebody is healthy and well she went beyond that though and the court has to look individually at the statements that she made so it wasn't just that she was reporting on the public safety issues in the n f l risk with her attempting to perform her job duties but she also brought up on multiple occasions and meetings what but the assistant county manager mr thomas with the county manager mr freeman and then again with mr hester the deputy county manager and set and with mr kushner the risk manager as  the pardon me i'm trying to focus on what exactly would you're addressing right now i just want to be clear those are the statements that you say were first amendment protected these statements to us and freema yes  and what she said what and she said in her meeting she had one meeting with thomas and one meeting in frame in the you're focusing on is that right i am and then she had multiple meetings what mr kushner and what diane loney who was the help director and as your complaint lay out that those are the bases for the first amendment claim they do your honor it does thomas and freeman and kushner and me and we not only did we lay it out in the complaint but we also laid it out and dr king's testimony and other testimony that we had offered in opposition to summary judgment where she had said and it's important that not to look just at the entirety but to look individually in this court has said repeatedly that you have to look at the individual statements even if some of those are for purely personal reasons and that would be under the lane case in furtherance of ordinary responsibilities not merely speech that concerns ordinary responsibilities proper allocation of duties in her view will lead to better answers but the both the idea about being worried about reverse discrimination and and other concerns seem to be addressed to the proper like this is my job somebody else is doing my job i'm responsible for this somebody else is doing it if that's the primary focus that is correct but so why what's wrong about reading how is it inaccurate to read the descriptions as to i mean the communications as described in the record as being the way the district court read them because she had that was it was only part of what she was reporting and that's where i thought robert elsa so so other things were being reported  on that didn't have to do with who has the responsibility in this office or in this organization that was part of it yes or and what was it in there not that any minuscule part is enough but what was it in there that was not read properly as a concern about her duties within the organization that she was reporting that jay had been treated significantly more favorably than other white officers who are quite potential firefighters who were unable to pass the pulmonary functions or other parts of the medical certification and that because the fact that you had more favorable treatment of j that it could expose the county to liability and what about all of these other white white folks that  it seem to be primarily i mean that's i think that's how the district court read the record it's primarily that this is something that the county is going to worry about if they're going to do stuff like this so they should change their procedures that sounds like not acting like a public interested person but like a person who's part of an organization who wants the organization to work properly and that's kind of the line that we're drawing right well i would go back to lane and look at what the court said in lane and then and judge martin's dissent and the case and crawl ok you said also just recently this court in the fernandez i think it was cited by the defendant  her job by baker buford she reported that there were that's that's consistent with the idea that we're worried about job and i'm right she was worried yes that's part of her job but then a large part of what she was also reporting and she had reported it consistently in every meeting that she had had with the management within and within the county and she had reported every single time and went to the risk manager and even told the risk manager that that one of the problems she was having with us is that jay had been treated more favorably than the white applicants or firefighter and so if you look at the individual stat was making and the number of times that she made it and it doesn't matter whether according to the case law from this court it doesn't make it big difference that she didn't make these publicly that she made them just to the county management and to the risk manager  looking in that private doesn't matter if there was a public minded purpose and so you would still look to see if there was a public minded purpose behind what dr king was reporting and our position as that if you look at the number of times  brought this issue up the reverse discrimination up that it wasn't just a small part of what she was reporting but she was in the context of her reporting and saying that she's been interfered with why did we not treat white applicants exactly the same way and that this could expose the city to liability and then if you've dealt with that yes no question that i wanted to give you a chance to respond to what worries me about your case i  test she failed to percent evidence of causation and i didn't see where you addressed that in your brief we can you point me to where you responded to that yes ma'am i would have to go back to the brief we'll have a chance when you are right we had addressed the issue she had been there was an ordinance that was passed back in two thousand and six and under that ordinance it said that health care services or something along the lines of services had to be put off or better if it was greater than fifty thousand dollars well dr king's contract was only thirty six thousand so it would never have fallen under the ordinance anyway the two thousand and thirteen and i think what you may be referring to  thousand and thirteen e mail that we move for reconsideration on to allow the newly discovered evidence to be presented but even without that to look at the circumstances and to look at the comments that were made i see that my time has expired may i continue to look at the circumstances to see that there that even after the two thousand and six ordinance had been passed that there were three times that dr king's contract had been renewed you have that you have comments that were made by commissioner smith to her that was on the commission and he said to her that the reason she was not renewed essentially was because of her interactions which and what happened with j you have michael question or this telling her that the reason that she's not that risk manager apologizing to her and saying that the reason that you're not being renewed is because of j you have the selection committee they don't even start to do anything even if you've got the two thousand and thirteen e mail they don't even start to do anything to further this issue putting it out for bed until two thousand and fifteen after dr king has made her reported disclosures i mean the brief i mean is long so i'm assuming all those facts are in there but just so you have the full understanding of what i'm thinking about your case is that you know my review says that you only mentioned the causation issue twice and wants was in the statement of issues and then issues that you've been addressing first speaking as an employee versus a citizen and i would wholeheartedly agree with the comments because if you look at some of the or the most compelling evidence in the case it all circles back to dr king getting her job done as she perceived it she was completely immersed in the in the process to the point that she contacted jay's pulmonologist and asked him to resend his clearance to the point that she notified jay's pulmonologist that from now on she would be the sole and only contact from polk county she did a public records request from her own employer she sought the phone records from a consulting doctor all with the idea of proving that there was this interference in her doing her job and so i think why isn't that simultaneously an effort to make sure that somebody who is not capable of doing a good job as a as a fireman or an t doesn't get the job you could be trying to achieve both at the same time couldn't you well if i understand the question your honor i think with the court found was that her primary  efforts here so it's a primary thing it's just like which is more but you agree that if you could conceivably hypothetically you could have somebody who says this is a bad result for the public and the reason it's coming about is because you're fooling around with my duties exactly that could both be at the same time in what is the law when they're both at the same time can you express one of them even though it has the effect of helping you with the other one i think the law is that obviously in all of these cases there's a lot of things that are intertwined judges are looking for a primary purpose main thrust you gotta look at the main thrust is that what the law is well that's on concern when you're speaking to what she does if you don't do what i say no allow me to be the final say on these things you may have a problem with reverse discrimination if you don't do what i say and allow me to be the final say  on this you may have a problem with safety so as to the answer my question is you can have both but if it's expressed in terms of one rather than the other than that's the one that's operative as that's the idea and i think this you have cases that support  purposes that were lurking there is whether there are in a lot of in that case yes because in that case they were complaining part of what they were complaining about was racial discrimination they were saying that this person doesn't treat  people of color fairly they're saying that this person is inhibiting their ability to give care to some students in crisis so there were some of that public concerns but maybe you should  that well the way i looked at it and i tried to think of an analogy on the case if she were looking at a different department if she was saying look over there the i noticed the meter readers in the traffic department are only given tickets to the black people not white people completely unrelated to her job duties that's one thing but when she brings it back to what she does and says you may have a problem with reverse discrimination if you don't follow what i'm telling you you need to do or you may have a safety concerns if you don't do what i make me have the let me have the final say that's how it circles back to we're talking now about this case rather than the  your red briefs i don't i don't think you do because i don't think one was made but really it was brought up in terms of the motion for reconsideration i noticed that too because she submitted a number of briefs after the judgment was entered and so it was in fact it was in here today i wanted i want to make sure that you all understand this causation issue is being looked at in terms of the motion for reconsideration so that's an of discretion standard on that i mean we have to just i mean we can only address the issues that are raised in this quarter right you know when i'm confused you're talking about what was raised below and judge martin's talking about what was raised here is that correct yes i think so how do you respond to judge barnes question about what was raised here well honestly i don't know she raised it in her brief i know she raised it in them in the motion f couple of things about that in as i point out that should be decided on going to be use of discretion standard that the issue that they were addressing in those affidavits was something that was discussed thoroughly with witnesses in depositions it was made attached as an exhibit that email so i think that was part of the judge's or  basis for the judge's decision that all that was available and you know the standard that they would like to to propose for reconsideration is something novel as well but even but none of that know that happened also point out that none of the things that were argued in any way contradicts the  fourteen i mean that's what i'm talking about that the disc court found you know will this decision to submit all these contracts to the r f p process was made before dr king ever spoke up about  mr j and so it was you know if there wasn't any calls or connection between what happened to her and there wasn't anything that they put  contradict the evidence that we went forward with on our motion for summary judgment in other words you know when you're going back to what was in the district court and you know you won there because the district court related to jay because that requirement was imposed before she ever did you know engage in that speech it's your honor and i did come forward with that affidavit from the county of me mr gregg and then because this court has held the arthur v king case that affidavits are considered new or newly considered evidence just because they were drafted and the cable that affidavit came assurance i'll speak about a couple of other things i want to definitely mention the public concern and the qualified immunity before i sit down the public concern aspect of the court again you're looking at finding the main thrust of things and and speeches is rarely as it's been held rarely all private or all public and you have to determine the primary purpose and this is a question of law for the for the court and the court found based on the evidence and applying the   the facts on this issue that were important to the court and again the court is required to examine the entire record and determine main thrust and what's primary and things of that nature and what she found was a lot of speech about that she had never been challenged before dr king and never been challenged before journal which mentioned a lot of the issues about management who should have final say but nothing about reverse discrimination her own complaints of interference as i mentioned before she was involved with the doctor himself and asking him to rescind his opinion and advising that she would have the final say from now on the white case from the u s supreme court came out and said an issue to rest that general things that are generally similar are not enough it's not enough to say that you can't fire someone for first amendment reasons there has to be some very similar cases this court has as found that that's very difficult to do in first amendment cases particularly when you have the pickering balancing test on top of that so our district judge set out to find some cases where a person was actively involved in trying to deprive another person of employment where perhaps reverse discrimination was involved and also intermingled with her own private employment issues about her own authority and could find no so she granted qualified immunity to all of the individual defend it your honor and i would ask that that be affirmed as well i've got a few seconds left if you have any questions because she did not and we did not have any knowledge that they would have no indeed you get the knowledge that they would have known after the court ruled against you some reject as dr king had set forth in her a in support of the motion for reconsideration she was having lunch with the two of them after the court's order was entered and after the cheap mentioned what the court had had ruled and they then brought up and i think that this is all borne out on i'm trying to paraphrase what she said and they said oh well that that would be incorrect because of this and then they had remembered conversations that they had prepared to pose them we did you didn't ask them about that that was not we did not appreciate tha respectfully have a motion on final disposition of a case and then say well let's go back and see if we can find some better evidence to put before the judge and doesn't work and your honor respectfully that's not what happened here and that's not like that is what's happened  e because you depose these two witnesses you did not ask them that that is according to you highly relevant well enough relevance to it that it justifies setting aside an order of the district court which after the district court had focused in considered all your evidence and ruled you say wait a minute let's start over put that aside because we found this highly relevant evidence that we didn't even ask about when we were deposing and judge i don't think that that evidence even that evidence from mr and what we had argued below and what we have even brought up here and this is on pages thirty four through forty seven of our initial briefing and starting on page one of our reply brief where we have addressed this issue in saying even wit out the reconsideration that that there were enough facts to show and that's what we brought a different issue than whether the district court erred by failing to grant your motion for reconsideration and let me tell you something else that very confusing to me you file your notice of appeal both on the summary judgment in your own summary judgment and also the nava motion for reconsideration entirely proper to do that but then and in your briefs statement of issues you list i think it's the first four issues go to the merits of the summary judgment order and then there's a motion for reconsideration issue listed which is entirely proper but then when you get to the to the brief looking at page the law you've got one argument and it is the district court erred by the nine appellant's motion for reconsideration and everything is a sub argument under that and then when i read your brief from forty nine and eighty a lot of it's about the motion for reconsideration it doesn't even appear that if you think all the motion for reconsideration you've preserved the district court underlying summary judgment motion to you what really confuses me is that footnote one of your reply brief you say of pele's are correct in footnote to that after earlier properly stating the standards apical to review a summary judgment reconsideration sole argument our argument lies and obviously we raise other issues other than reconsideration on our our subsequent arguments in the brief and that was a misstatement as to whether it was to no immerses in these a discussion i'm for trading that is so but there are parts of the sub arguments which same to speak to the summary judgment which talk about because it was a motion for reconsideration and i see it like that what i'm just saying and i'm going to treat it is though you properly distinguished and that was on the summary judgment motion but you need to be really a lot more careful yes or in the organisation of the brief because one of the first things i do when i get a brief is look at the table contents because that understand what you're arguing in and where you're arguing it in that kind of thing and it was just real confusing yesterday being said that i've taken up at least two minutes of your time so we're going to give you two more a minute i'll ask a follow up question to that in light of that i'm just trying to get exactly where you argued the matter judge martin raised and his district court relied in the alternative on a causation issue to rule causation issue in the reply brief what we said on plain brief because you would have to bring that in the main preferred yes or yes or and you're saying it's not raised between page forty nine and eighty it is raised as part of the reconsideration on  the original and the initial brave and it is writers that i'm just asking where that is all a mess that is is racist par just in the reconsideration from time to show us in the brief because we both look for success it's not it's not independent what i'm trying to say is it's not independently raised as a causation issue independent of the reconsideration are show us where in connection with the reconsideration argument it's oh i'm sorry to cases today you're lucky sixty one of ninety two or is actually page fifty the actual page and it says we're arguing about the reconsideration appellee as not credibly disputed the such evidence establishes a material issue as to caus consider some evidence you put before for the first time in that motion for reconsideration yes or and then we raised it again a second time in the reply brief in saying and said even without this evidence the court should not have  judgment even without the newly discovered evidence difficulty if we decide the district court didn't abuse its discretion in and denying your motion for reconsideration because you could have put reconsider well i think what we have really if i could go through it may be that we rate we have not your honor to be candid with the court we have not raised it as a separate heading it is throughout the brief it is an issue that we have addressed but did we raise a deceptive you know your honor we did not and we did not raise it as a separate issue in the reply barry but we raised it in said in the reply brief that even without this evidence that it would it been there was sufficient dispute that and the reason that we disputed is because there was no effort even though she was two years into the contract almost three years in the contract there were no efforts to try to do anything to further this r f p process plus the oric he did not even