[00:00:00] Speaker 01: All right, counsel, you may proceed. [00:00:04] Speaker 02: All right, good morning, your honors, and may it please the court. [00:00:08] Speaker 02: My name is Joshua Morrison, and I represent the appellant, Eugene Whitlock. [00:00:13] Speaker 02: An issue in this case is whether Mr. Whitlock is entitled to qualified immunity for his conduct in initiating a due process disciplinary hearing. [00:00:24] Speaker 02: in connection with Ms. [00:00:26] Speaker 02: Grigorescu in 2015 and engaging in various acts incidental to that due process here. [00:00:36] Speaker 02: In Crawford L, the court recognized that the immunity standard in Harlow eliminates all motive-based claims in which the officials' conduct did not violate clearly established law. [00:00:48] Speaker 02: And so in considering the contours of what constitutes a clearly established right for purposes of qualified immunity, [00:00:55] Speaker 02: The court in Riley, which is going to be the focus of our argument, held that the right to be free from First Amendment retaliation, which is the right at issue here, cannot be framed as the general right to be free from retaliation from one's speech. [00:01:09] Speaker 02: So there's not a general standard. [00:01:12] Speaker 02: Instead, it's very specific. [00:01:14] Speaker 02: And this is based on the Supreme Court's holding in Saussier, where the court held that the determination as to whether a right [00:01:20] Speaker 02: was clearly established must be undertaken in light of the specific context of the case, not as a broad general proposition. [00:01:29] Speaker 02: And so in Riley, which was a case involving the school district, a case involving First Amendment rights, the court framed the issue as to what was the clearly established right very specifically. [00:01:45] Speaker 02: And in Riley, the court said the issue was essentially whether, in September of 2018, it was clearly established that a school district could not cease patronizing a company, providing historical reenactments and other events for students, because the company's principal shareholder had posted controversial tweets that led to parental complaints. [00:02:05] Speaker 02: That's a very specific statement. [00:02:07] Speaker 02: It's much beyond the general idea that you have rights under the First Amendment to speak, and those rights shouldn't be infringed. [00:02:15] Speaker 02: And it's on this specific point highlighted in Riley, this focus on specificity, that we think the trial court erred. [00:02:22] Speaker 02: The trial court here framed the issue in very general terms. [00:02:28] Speaker 02: Trial court said, defendant cannot properly argue that retaliation against protective expression is not barred by clearly established law and then moved on. [00:02:36] Speaker 02: And so the key issue becomes, how do we frame the issue as to what right was currently established in the present case? [00:02:45] Speaker 02: And to reach that point, I think it's important to focus on what Mr. Whitlock is alleged to have done. [00:02:53] Speaker 02: He became the Vice Chancellor of Human Resources shortly before the events that are being litigated. [00:03:02] Speaker 02: And in the course of that, performing his duties, he received an employment application from Ms. [00:03:07] Speaker 02: Grigorescu. [00:03:08] Speaker 02: At the time, Ms. [00:03:09] Speaker 02: Grigorescu was a classified employee of the district. [00:03:12] Speaker 02: She also occasionally served as an adjunct at-will faculty member, and she was applying for a tenure-track faculty position. [00:03:21] Speaker 02: Her application for the tenure-track faculty position represented that she held a master's degree. [00:03:27] Speaker 03: If I can interrupt just to see if we're framing the issue correctly. [00:03:31] Speaker 03: For purposes of this stage here, we're assuming that her First Amendment activity was a substantial or motivating factor for the investigation. [00:03:43] Speaker 03: But I guess what you're disputing is whether it was clearly established that investigating her for potential misrepresentation is an adverse action. [00:03:53] Speaker 03: Is that the proper way to look at it? [00:03:56] Speaker 02: I would say we're not, at this point I think we have to assume for purposes of this argument that she engaged in free speech and we're not really contesting that element. [00:04:08] Speaker 02: What we are focused on is whether there's clearly established law. [00:04:11] Speaker 02: So yes, whether his actions were adverse, but also if they were adverse, whether that adversity was something that violated clearly established law such that a reasonable official would have known that he couldn't take those steps. [00:04:24] Speaker 02: And so when Mr. Whitlock received the employment application from Ms. [00:04:27] Speaker 02: Grigorescu, it represented that she held a master's degree. [00:04:30] Speaker 02: Now, this is a community college that we're dealing with. [00:04:35] Speaker 02: They employ faculty. [00:04:36] Speaker 02: Degrees in higher education are important. [00:04:39] Speaker 02: And under California law, in order to serve as a physics instructor, which was the position Ms. [00:04:45] Speaker 02: Grigorescu was applying for, you are required to hold a master's degree or the equivalent. [00:04:53] Speaker 02: that there's a process for that. [00:04:54] Speaker 02: You either hold a master's degree or if you believe you've got the equivalent of that, you can apply for equivalency. [00:05:00] Speaker 02: There's a committee process. [00:05:02] Speaker 02: That wasn't followed. [00:05:04] Speaker 02: That didn't happen here. [00:05:06] Speaker 02: And so Mr. Whitlock has this application. [00:05:09] Speaker 02: It says that Ms. [00:05:11] Speaker 02: Grigoresco holds a master's degree. [00:05:13] Speaker 02: But in her personnel file is a letter from 2004 that she had previously filed with the college. [00:05:19] Speaker 02: that was obtained by an outside agency selected by Ms. [00:05:22] Speaker 02: Grigorescu. [00:05:23] Speaker 02: The outside agency reviewed her degree, which was a foreign degree. [00:05:27] Speaker 02: And they said this foreign degree, the same one that she was representing as a master's in 2015, was in fact the equivalent of a bachelor's degree. [00:05:38] Speaker 02: And so now Mr. Whitlock has a representation that she holds a master's degree, but a prior representation from an agency selected by Ms. [00:05:46] Speaker 02: Grigorescu [00:05:47] Speaker 02: that indicates that that very same degree is the equivalent of a bachelor's degree. [00:05:51] Speaker 02: And so there's a discrepancy there. [00:05:54] Speaker 02: And so Mr. Whitlock tries to figure out, okay, how do we figure out, you know, how to resolve this discrepancy? [00:06:01] Speaker 02: Ms. [00:06:01] Speaker 02: Grigorescu said, hey, I've worked for other colleges. [00:06:04] Speaker 02: I worked for University of California, Berkeley. [00:06:06] Speaker 02: I've worked for other places. [00:06:07] Speaker 02: They recognize my degree as a master's. [00:06:10] Speaker 02: And so Mr. Whitlock contacted them. [00:06:12] Speaker 02: That is now his act of contacting them [00:06:15] Speaker 02: to follow up on this allegation is now presented as a reverse. [00:06:20] Speaker 02: He also had conversations with Ms. [00:06:22] Speaker 02: Grigorescu's representative at certain points and eventually decided, hey, we've got a discrepancy here. [00:06:29] Speaker 02: I don't think she's being honest in representing that this degree is a master's considering the outside agency that she selected that she contracted with views this as a bachelor's. [00:06:42] Speaker 02: And so at that point, Mr. Whitlock [00:06:44] Speaker 02: initiated a very extensive due process hearing process, and there's quite a few steps in it. [00:06:52] Speaker 02: And our contention is going to be that his act of taking what is a clear discrepancy in her representation on a key point relating to her qualification for employment was something that needed to be addressed and could be addressed and should be addressed as a disciplinary matter. [00:07:11] Speaker 02: And so that's what Mr. Whitlock [00:07:13] Speaker 02: initiated, and that's the main adverse action that Ms. [00:07:18] Speaker 02: Gregg Rescue points to. [00:07:20] Speaker 02: So initially, Mr. Whitlock provided a Skelly hearing under California law, Skelly versus State Personnel Board, and as a practice, essentially what [00:07:33] Speaker 00: I'm confused by your argument. [00:07:34] Speaker 00: Pardon me. [00:07:35] Speaker 00: It's probably my fault, not yours. [00:07:37] Speaker 00: But it turns out that the degree was a master's degree. [00:07:45] Speaker 00: What wasn't correct was the high school degree being a bachelor's degree. [00:07:50] Speaker 00: That was not an issue. [00:07:51] Speaker 00: And the issue here is, if the motivation of Mr. Whitlock was not the later discovered non [00:07:59] Speaker 00: but really because he didn't like Grigorescu taking up the green position on the garden rather than the parking lot. [00:08:08] Speaker 01: Well, in fact, he was the attorney. [00:08:10] Speaker 00: Isn't that the motivation that we're dealing with regarding clearly established law? [00:08:15] Speaker 00: If she has a First Amendment right to protest the green, the parking lot versus the green area, [00:08:23] Speaker 00: Is that, is there no clearly established law that that is indeed a violation of her First Amendment rights? [00:08:34] Speaker 00: Is that your position? [00:08:34] Speaker 02: I would say three things to that, Your Honor. [00:08:36] Speaker 02: First of all, motive is, under Crawford Allen Harlem, motive, Mr. Whitlock's motive is not relevant. [00:08:43] Speaker 02: Secondly... Why is it not relevant? [00:08:46] Speaker 02: Because Crawford else says Harlow eliminates motive-based claims in which the conduct did not violate clearly established law. [00:08:55] Speaker 02: And so the question becomes, was there a violation of clearly established law? [00:08:58] Speaker 02: And that's an objective question, not a motive-based subjective question. [00:09:03] Speaker 01: Isn't the right to public employee speech clearly established law? [00:09:09] Speaker 01: It's been First Amendment doctrine for forever. [00:09:13] Speaker 01: Yes, but the question is whether the speech was she was active in this opposition to the school districts turning the gardens into public parking or paving paving over the gardens and to the to the point where she sued. [00:09:36] Speaker 01: She was among the people who sued the district. [00:09:41] Speaker 01: And Mr. Whitlock himself was actually one of the attorneys for San Mateo County who defended the lawsuits. [00:09:51] Speaker 02: Correct your honor. [00:09:52] Speaker 01: Oh, really? [00:09:53] Speaker 02: She was not a plaintiff. [00:09:55] Speaker 02: Her name appears nowhere on the record of the case. [00:09:57] Speaker 01: She was part of the group that did that. [00:09:59] Speaker 02: She alleges she was part of the group that was involved. [00:10:02] Speaker 02: But there's no record that that information came to Mr. Whitlock's attention. [00:10:06] Speaker 01: Well, something that could be inferred [00:10:10] Speaker 01: I mean, we're taking the facts in the light most favorable to the plaintiff here, right? [00:10:17] Speaker 02: Right, but there's no allegation that Mr. Whitlock [00:10:21] Speaker 02: I guess there's an allegation that he should have known that she was somehow involved. [00:10:25] Speaker 03: But she was not a- But we have to assume for this stage that the First Amendment activity was a substantial or motivating factor for investigating, right? [00:10:35] Speaker 02: Understood. [00:10:35] Speaker 02: But I did want to note she was not a plaintiff and Mr. Whitlock is not a CEQA attorney. [00:10:40] Speaker 02: He was involved and then handed off the case or essentially got a firm that deals with CEQA litigation and they handled the case. [00:10:47] Speaker 02: His name remained on the pleadings, but he wasn't the lead attorney. [00:10:51] Speaker 02: This wasn't a case that he was. [00:10:54] Speaker 01: Well, I could see this proceeding and you could put on evidence that there's no way that Mr. Woodlock would have even known of her involvement and therefore his investigation and the campaign of harassment was not motivated by her First Amendment activity. [00:11:13] Speaker 01: But at this point, I don't think we could say that because we don't know. [00:11:19] Speaker 02: Our argument, again, though, is not based on sort of disputing the factual elements of her first amendment of conduct or his knowledge. [00:11:31] Speaker 02: Our argument is that in Crawford, Ellis, and in Harlow, the issue is not his motive. [00:11:39] Speaker 02: The issue is whether his conduct violated currently established law. [00:11:43] Speaker 02: That's the second prong. [00:11:44] Speaker 02: And that is an objective question. [00:11:47] Speaker 03: Assume, again assume, we have to assume here at this stage that her First Amendment activity was a substantial and motivating factor for investigating her. [00:11:57] Speaker 03: Assume here that Mr. Whitlock was the one who investigated and then he's the one who unilaterally fired her. [00:12:05] Speaker 03: Would that be clearly established that he couldn't do that? [00:12:09] Speaker 02: I think that's a different question and that's, I think, if I may, [00:12:15] Speaker 02: Um, that's not what he did. [00:12:16] Speaker 02: He didn't take any preemptive action. [00:12:18] Speaker 02: He didn't suspend her without pay. [00:12:21] Speaker 03: But if he were the one, so I guess your argument is that it's not clearly established because he investigated, but it was someone else. [00:12:29] Speaker 03: It was a neutral arbitrator who made the ultimate decision. [00:12:33] Speaker 03: Is that yes. [00:12:35] Speaker 02: Our argument essentially is that he didn't take action against her. [00:12:38] Speaker 02: He referred the matter, which was illegitimate on its face. [00:12:41] Speaker 02: misrepresentation by her to a due process hearing, and the decision was then essentially a recommendation from the hearing officer following a full due process hearing to the district's board. [00:12:54] Speaker 02: The board then took action. [00:12:56] Speaker 02: And the decision in the hearing, which was partially against Ms. [00:13:01] Speaker 02: Grigorescu and partially in her favor, reflects that it was a fair hearing. [00:13:05] Speaker 02: To the prior question that was raised a few minutes ago, [00:13:09] Speaker 02: The information that Mr. Whitlock had at the time he initiated hearing was simply those two pieces, the 2004 letter that said she doesn't have a master's, the later representation that she did. [00:13:22] Speaker 02: But I will note, it's possible for somebody to get a foreign degree that may in fact even be called a master's degree, and they can represent that they have a master's degree and not be dishonest. [00:13:33] Speaker 02: But that degree still may not be [00:13:35] Speaker 02: the equivalent of a US master's degree for purposes of satisfying qualifications to teach. [00:13:41] Speaker 02: And so the issue here was one of dishonesty. [00:13:43] Speaker 02: It was one of misrepresentation. [00:13:45] Speaker 02: And again, that issue, based on the 2004 letter, based on her employment application, showed two different representations at two different points in time by the same person about the same degree. [00:14:00] Speaker 02: And that was a legitimate issue that Mr. Whitlock was bound to pursue, and he did. [00:14:05] Speaker 02: But the act of referring this to a due process hearing, and she had extensive amounts of due process. [00:14:13] Speaker 02: She had a scaling hearing. [00:14:14] Speaker 02: She had a full evidentiary hearing in front of a neutral hearing officer. [00:14:20] Speaker 01: To me, this entire argument is you're avoiding what the key issue is. [00:14:27] Speaker 01: Yes, all that could be true. [00:14:30] Speaker 01: And it could also be true that a substantial [00:14:33] Speaker 01: motivating factor in his even conducting the investigation and going through all these harassment allegations was her participation in the Green Movement, as you're calling it. [00:14:51] Speaker 01: I mean, both could be true, and you're just arguing one side of it. [00:14:57] Speaker 02: Mr. Whitlock was bound to process her employment application. [00:15:02] Speaker 02: And when he saw a legitimate issue that questioned the credential that indicated she was misrepresenting, do we want to have public officials in his position say, no, I'm not going to handle this. [00:15:13] Speaker 02: I don't want to cause trouble for myself. [00:15:15] Speaker 02: I'm going to let somebody slide. [00:15:17] Speaker 02: I'm going to let them misrepresent because I don't want to be dragged into court. [00:15:20] Speaker 02: There needs to be an objective standard. [00:15:22] Speaker 02: And here, all that he did was refer the matter [00:15:26] Speaker 02: to a scally hearing where another administrator said, boy, this looks like something that should proceed to hearing. [00:15:31] Speaker 02: And then it went to a due process hearing where a neutral hearing officer came in and decided the case. [00:15:36] Speaker 02: He didn't dictate the result. [00:15:38] Speaker 02: He initiated the process, but it was a fair process. [00:15:41] Speaker 02: And we think that there's no clearly established law that initiating a fair due process hearing where she's got full representational rights is somehow a violation of her [00:15:53] Speaker 02: of her constitutional right to free speech. [00:15:55] Speaker 01: Okay, thank you, counsel, you're well over your time. [00:15:57] Speaker 00: Pardon me, Mr. Morrison, is your point that actually Mr. Whitlock didn't commence this action, it was Grigoresco's application that commenced the action? [00:16:09] Speaker 02: Well, Mr. Whitlock didn't seek this out. [00:16:11] Speaker 02: He saw the application, he then saw the 2004 letter and realized there was a clear discrepancy, and so faced with [00:16:20] Speaker 02: two different representations for Ms. [00:16:22] Speaker 02: Grigorescu as to what her disagreement was, he then initiated a due process hearing that would determine whether she was being honest, whether there was grounds for this or what. [00:16:33] Speaker 00: So your position is that there's no evidence at all that his motivation against her green position was a motivating factor in starting the investigation? [00:16:45] Speaker 02: We don't believe that to be the case, but we're not arguing that he was... Or is your position that irrespective of whether he really didn't like Ms. [00:16:54] Speaker 00: Goresco because she took the positions regarding the parking lot, he had an obligation [00:17:02] Speaker 00: to start the disciplinary hearing because of the discrepancy? [00:17:07] Speaker 02: Our argument is that a reasonable official in his position would have taken this discrepancy up and dealt with it in the manner that he did. [00:17:14] Speaker 00: Regardless of his motivation on the green factors? [00:17:17] Speaker 02: Correct. [00:17:17] Speaker 02: Correct. [00:17:19] Speaker 02: And the decision from the hearing officer, which again brought in new evidence, found that there wasn't dishonest, but it also found other misrepresentations, that was a fair decision. [00:17:28] Speaker 02: This was a fair process. [00:17:30] Speaker 02: But what Mr. Whitlock did is initiate a fair process. [00:17:32] Speaker 02: We don't think that active initiating a fair process is somehow violates clearly established law. [00:17:40] Speaker 02: There's at least no law that anybody's pointed to that says initiating a fair due process hearing in this context is constitutionally problematic. [00:17:47] Speaker 01: All right. [00:17:48] Speaker 01: You're well over your time. [00:17:49] Speaker 01: Thank you very much. [00:18:05] Speaker 04: Good morning, your honors, and may it please the court. [00:18:07] Speaker 04: My name is Cabral Bonner with the law offices of Bonner & Bonner, and I represent the appellee, Violetta Grigorescu. [00:18:14] Speaker 04: Appellant Mr. Whitlock is asking this court to reverse the district court's order denying qualified immunity for [00:18:21] Speaker 04: as was just stated, initiating a disciplinary procedure that was going to lead to the termination of Ms. [00:18:27] Speaker 04: Grigorescu's employment. [00:18:29] Speaker 04: Specifically, he argues that there was no law at the time, clearly established law, that would have put him on notice that initiating this type of disciplinary action would be the type of adverse action that would be prohibited by First Amendment in the First Amendment employer retaliation context. [00:18:46] Speaker 04: As was stated here, stated in their brief, essentially what their case boils down to is that Mr. Whitlock acted in good faith, that he reasonably believed what he was doing was true. [00:18:57] Speaker 00: I don't think that's the position. [00:18:58] Speaker 00: I think the position is, regardless whether he acted in good faith, maybe he had a grudge against Ms. [00:19:04] Speaker 00: Grigoresco, but when he was given the application and he saw a discrepancy, he proceeded to have a hearing. [00:19:14] Speaker 00: and that that was objectively reasonable, and therefore there's no clearly established law that made that a violation of her First Amendment rights. [00:19:24] Speaker 04: That would require that you determine his motivation was to be objectively reasonable. [00:19:30] Speaker 04: His motivation may have been, aha, I found a way to get rid of Ms. [00:19:34] Speaker 04: Grigorescu, there's a discrepancy here, and I'm going to use this to terminate her. [00:19:39] Speaker 04: That is the potential other way to look at it. [00:19:42] Speaker 04: And that's why this is actually, as they framed their appeal, is not a proper appeal for interlocutory appeal, because it's not purely a legal question, as they framed it. [00:19:54] Speaker 04: They framed it in this way that all of the steps that Mr. Whitlock took were reasonable steps because he believed that there was discrepancy. [00:20:02] Speaker 04: And since he was taking these reasonable steps, he's entitled to qualified immunity. [00:20:06] Speaker 00: As long as there was a reasonable, objective way to start the disciplinary hearing, the fact that he had a motivation against her for her green activities is irrelevant. [00:20:20] Speaker 04: But looking at the case law on [00:20:24] Speaker 04: qualified immunity. [00:20:25] Speaker 04: There are two distinct questions. [00:20:27] Speaker 04: One is whether there is a constitutional violation. [00:20:31] Speaker 04: And the second is whether the right at issue was clearly established. [00:20:35] Speaker 04: Now, where does his motivation play or not play in that? [00:20:39] Speaker 04: What is objectively reasonable? [00:20:41] Speaker 04: The question is whether or not, looking at the case law, it would have been objectively reasonable to know that initiating a disciplinary procedure [00:20:50] Speaker 04: in response to someone engaging in protected activity would violate their First Amendment rights. [00:20:56] Speaker 04: And that we can go back to Pickering. [00:20:58] Speaker 04: The Pickering case establishes that a public teacher has the right to engage in speech, even if that speech is counter to the speech of their employer, and that is protected. [00:21:12] Speaker 04: What they're essentially arguing is that it goes to the [00:21:16] Speaker 04: causation element of the constitutional violation question. [00:21:22] Speaker 04: The causation element is where you would look to see whether or not what he did was what the motivation was or wasn't. [00:21:30] Speaker 04: But that, in a First Amendment context, [00:21:34] Speaker 04: requires looking at what it was a substantial motivating factor. [00:21:39] Speaker 04: Even if it might have been objectively reasonable to take these steps, if his motivation was to retaliate against her, then that's still an improper motivation. [00:21:47] Speaker 04: Because First Amendment, the courts treat First Amendment employer retaliation cases separately. [00:21:56] Speaker 04: And if you look at their cases, the cases that they've cited in their brief, [00:22:00] Speaker 04: They don't reference any First Amendment employer retaliation cases. [00:22:06] Speaker 04: In fact, the case he just cited, Riley, was not such a case. [00:22:09] Speaker 04: The courts treat it differently because there's a distinction when you are taking away a benefit that someone has because of their speech. [00:22:17] Speaker 04: That is an overreach by the government. [00:22:19] Speaker 04: That's the government essentially making a very pure First Amendment violation. [00:22:25] Speaker 04: So in the context of First Amendment employer retaliation, [00:22:30] Speaker 04: there are protections that are different than potentially in the Riley case. [00:22:35] Speaker 03: Does it make a difference here that there was more due process before she ultimately got reprimanded or got an adverse reaction that it wasn't just the head, it wasn't him himself, it wasn't the head of the office, it was a neutral arbitrator who made that decision. [00:22:53] Speaker 03: I think that's what they're getting at. [00:22:55] Speaker 03: It wasn't clear from the briefs, but I think that's the gist of it. [00:22:58] Speaker 04: So no, it doesn't matter, because what the court, the Ninth Circuit looks at, following Kozalter, which was a 2003 case, what they look at is whether the retaliatory conduct is reasonably likely to deter future First Amendment activities. [00:23:13] Speaker 04: So simply initiating a procedure that can result in determination. [00:23:18] Speaker 04: If that's all Mr. Whitlock did was, I'm going to initiate this procedure. [00:23:22] Speaker 04: I'm going to serve you with disciplinary paperwork that's [00:23:25] Speaker 04: initiate an investigation into whether you have the correct credentials, that act alone is reasonably likely to deter future First Amendment activities. [00:23:36] Speaker 01: So that's what the Council, Mr. Morrison, is trying to limit it to just that act, but it wasn't just the initiation of the procedure that constituted the [00:23:53] Speaker 01: Allegedly retaliatory acts in this case. [00:23:56] Speaker 01: There was far more other things that Mr. Whitlock Did like he issued he tried to fire her twice even after this due process due process at the hearing He suspended her for [00:24:17] Speaker 01: quote unquote, misrepresenting her physical condition and abusive leave privileges. [00:24:22] Speaker 01: And he did other acts of harassment trying to get rid of her. [00:24:27] Speaker 01: And we didn't hear a mention of those acts by Whitlock's counsel. [00:24:31] Speaker 01: And this is an ongoing series of harassment that the district court reasoned from in determining that there was not [00:24:45] Speaker 01: I guess, qualified immunity for these acts. [00:24:49] Speaker 01: He banned her from substituting for full-time professors at one point and failed to provide workplace disability accommodations, required her to take a leave of absence after experiencing physical health issues. [00:25:03] Speaker 01: I mean, it goes on and on. [00:25:04] Speaker 01: It's not just that he found discrepancy in her file, right? [00:25:10] Speaker 04: That is correct. [00:25:11] Speaker 01: But why aren't we discussing that? [00:25:13] Speaker 01: That's part of this whole fabric of retaliatory behavior here. [00:25:17] Speaker 04: It is. [00:25:19] Speaker 04: And we could go back to Consultor. [00:25:22] Speaker 04: The question is whether, well, if we go back to qualified immunity, setting aside, they have essentially, well, they don't have essentially, they have conceded the prong of the qualified immunity analysis that discusses whether there is a constitutional violation. [00:25:37] Speaker 04: So we can move forward, based on their concessions, [00:25:40] Speaker 04: Ms. [00:25:41] Speaker 04: Gregorescu engaged in protected speech. [00:25:43] Speaker 04: They've said right up here that she, that Mr. Whitlock initiated this disciplinary proceeding, and that they've conceded in their papers that there was a causal relation, that there's a tribal issue of fact of whether or not her protected speech was a substantial mitigating factor. [00:25:58] Speaker 04: So that's the first prong. [00:25:59] Speaker 04: There's a tribal issue of fact on that. [00:26:01] Speaker 04: The second prong just looks at whether the right, the right that Ms. [00:26:06] Speaker 04: Gregorescu had, whether that was clearly established. [00:26:09] Speaker 04: And the thrust of their argument is that the way in which he chose to violate that right, the way in which he chose to retaliate against her was not clearly established. [00:26:20] Speaker 04: But to Your Honor's point, Kozalter case establishes that the reasonably likely to deter test can involve a whole host of issues, a whole host of even minor retaliatory context, which are exactly what occurred in this case. [00:26:34] Speaker 04: Everything that Your Honor represented were [00:26:37] Speaker 04: each individually and collectively could be considered adverse actions. [00:26:42] Speaker 04: And he and Mr. Whitlock was on notice that these things could be considered adverse action based on the case law in Casalta. [00:26:51] Speaker 00: Mr. Bonner, if Mr. Whitlock had a grudge against Ms. [00:26:55] Speaker 00: Grigoresco and wanted to fire her because of her green activities, and that was a substantial factor in him taking any action. [00:27:03] Speaker 00: But he didn't take any action. [00:27:05] Speaker 00: until she applied for her certification. [00:27:11] Speaker 00: And then he noticed that there was a discrepancy. [00:27:16] Speaker 00: Who determines whether the hearing was because of his earlier anti-green motivation or because of the fact that he noticed a discrepancy? [00:27:29] Speaker 04: The jury. [00:27:30] Speaker 04: The jury makes that determination. [00:27:32] Speaker 00: So there should be no qualified immunity. [00:27:34] Speaker 04: There is no qualified immunity as a matter of right in an interlocutor appeal because that exact point you raised is a factual determination that needs to be left up to the jury. [00:27:43] Speaker 00: As long as the improper motivation is [00:27:48] Speaker 00: under Kozalter a substantial or motivating factor for the adverse employment action, even though there was another cause for the adverse employment action, then he doesn't get a qualified immunity. [00:28:01] Speaker 04: He does not. [00:28:01] Speaker 04: It's a mixed motive case. [00:28:02] Speaker 04: He does not get qualified immunity, and it's not a proper and laudatory appeal, because it's a factual question that should be left up to the jury. [00:28:08] Speaker 01: But you're going to have to prove that. [00:28:09] Speaker 01: Yes. [00:28:10] Speaker 01: And he's going to respond, well, I found this discrepancy, and then it's going to have to be [00:28:16] Speaker 01: left up to the jury to decide who's telling the truth. [00:28:21] Speaker 04: I agree, Your Honor. [00:28:22] Speaker 04: That's why it's not proper for this. [00:28:25] Speaker 01: But you're arguing too that we don't have jurisdiction because it's a factual question, not a legal question. [00:28:30] Speaker 04: Yes. [00:28:32] Speaker 04: All we've been discussing today are these facts. [00:28:34] Speaker 04: His point when he stood up. [00:28:35] Speaker 01: That's true, but there is a legal question as to whether there's a clearly established right. [00:28:46] Speaker 04: As to the clearly established right, I would direct the court to Dodge versus Evergreen schools. [00:28:54] Speaker 04: The Dodge court, in that case, the constitutionally protected speech at issue was the teacher wearing a MAGA hat to a school function. [00:29:04] Speaker 04: The principal says, if you wear that MAGA hat again, we're going to be in my office and we're going to be discussing it and you're going to need to bring a union representative. [00:29:15] Speaker 04: In the Ninth Circuit, looking at that case, addressing this exact same question of whether that teacher had a clearly established right to wear a MAGA hat, the court started its analysis with Pickering. [00:29:27] Speaker 04: And looking at Pickering, the court determined that public school teachers, going back to Pickering, have had a constitutional right to engage in controversial or speech that was not consistent with their public school [00:29:40] Speaker 04: employer, and that was protected. [00:29:42] Speaker 04: The court didn't look at any other type of more granular definition. [00:29:47] Speaker 04: There was no case they looked at to see whether someone was wearing some type of campaign shirt. [00:29:53] Speaker 04: They just looked at whether or not wearing a MAGA hat was protected, and they started the analysis with pickering. [00:29:59] Speaker 03: If I can build on Judge Bay's hypothetical, assume there's a tenured professor at a state university and he signs a, you know, whatever you want, pro or anti Gaza activity petition and it's very active and a college administrator doesn't like that position or whatever it is. [00:30:16] Speaker 03: At the same time, someone tells the college administrator, hey, look at these sheets, funding sheets for our department. [00:30:23] Speaker 03: I think this professor has been embezzling funds for personal use. [00:30:28] Speaker 03: So the administrator then refers that to the local police investigated and in the court system, the professor is found guilty and part of the contract, employment contract says if you're convicted of a felony, you lose tenure, you can be fired. [00:30:44] Speaker 03: So in that situation with that college administrator, maybe mixed motives, maybe didn't like the professor for his views, but also was genuinely concerned about embezzlement and was given that information and felt that he had to act, that person wouldn't get qualified immunity? [00:31:04] Speaker 04: Likely, obviously it would depend, but likely they wouldn't get qualified immunity if there were sufficient facts to show a causal connection between their conduct [00:31:14] Speaker 04: initiating this criminal investigation and the protected speech. [00:31:19] Speaker 04: In this case, they've conceded that there is that causal connection. [00:31:25] Speaker 04: So in your hypothetical, Your Honor, if the teacher could not show any causal connection between the initiation of the criminal proceeding and his protected speech, he wouldn't be able to show the first prong of this, which would be a constitutional violation. [00:31:40] Speaker 04: However, under Kozalter, [00:31:42] Speaker 04: If he initiated criminal investigations, and that stopped this teacher that were reasonably likely to deter future First Amendment conduct, it would be clearly established that if that was why he did it, that would be a constitutional violation. [00:31:58] Speaker 04: And the question would be whether there would be facts to show a constitutional violation. [00:32:02] Speaker 04: If there were, he would not be entitled, as a matter of law, to qualified immunity. [00:32:07] Speaker 04: He'd have to prove before a jury that that was his true motivation. [00:32:11] Speaker 03: Seems like it gives incentives to state employees to be very loud and vocal about any political hot button issue. [00:32:19] Speaker 03: Kind of gives you extra protection. [00:32:20] Speaker 03: If you're loud enough and people notice, you can always say there's a factual issue and that's the reason I'm getting disciplined. [00:32:27] Speaker 04: Yes, Your Honor. [00:32:29] Speaker 04: Public employees are protected by the Constitution, but they still have to show causation. [00:32:33] Speaker 04: Causation is not an easy, is a substantial [00:32:37] Speaker 04: hurdle for these types of cases. [00:32:40] Speaker 04: But we're not here talking about causation because that's been conceded. [00:32:45] Speaker 04: We're here talking about whether it was clearly established that public school employees have the right to speak on matters of public concern and free from retaliatory conduct. [00:32:55] Speaker 04: And for that matter, just as in Dodge versus Evergreen School, the Ninth Circuit started its analysis with Pickering and determined that in some cases, [00:33:04] Speaker 04: It's so clear from decisional law that you don't have to have an exact case on point. [00:33:10] Speaker 04: There's no person working with public school employees who wouldn't think that school teacher has the right to wear a MAGA hat, has the right to engage in sit-ins. [00:33:18] Speaker 04: has the right to join a lawsuit to fight the use of public funds in education. [00:33:26] Speaker 04: For those reasons, I think your honors should affirm the district court's denial of summary judgment on the basis of qualified immunity. [00:33:35] Speaker 01: Thank you. [00:33:35] Speaker 01: All right. [00:33:36] Speaker 01: Thank you very much. [00:33:38] Speaker 01: Giga Rescue versus Whitlock is submitted, and this session of the court is adjourned for today.