[00:00:00] Speaker 04:
24-7086 Avant versus Doak.

[00:00:06] Speaker 04:
Council can correct me if I'm wrong on that.

[00:00:08] Speaker 04:
Council for Appellant, if you'll make your appearance and proceed.

[00:00:12] Speaker 03:
Thank you, members of the court.

[00:00:13] Speaker 03:
My name is Mark Hammons.

[00:00:15] Speaker 03:
I represent the appellant.

[00:00:17] Speaker 03:
It's Avant.

[00:00:19] Speaker 03:
Avant?

[00:00:20] Speaker 03:
Avant.

[00:00:20] Speaker 03:
Okay.

[00:00:21] Speaker 03:
There are essentially three issues on this appeal.

[00:00:26] Speaker 03:
One is whether or not the district court correctly dismissed the political association claim.

[00:00:34] Speaker 03:
The next is whether or not on reconsideration after this court's decision, second decision on this appeal,

[00:00:44] Speaker 03:
the court properly applied the Heffernan defense as a basis for final disposition.

[00:00:53] Speaker 03:
And the third issue is whether or not the court was correct in denying the First Amendment retaliation case summary judgment motion.

[00:01:01] Speaker 03:
In other words, whether that should go forward assuming the Heffernan defense does not end the case.

[00:01:09] Speaker 03:
With regard to the first issue on political association, we relied primarily on Barker v. City of Del City, which sets out just two elements for a political association case.

[00:01:23] Speaker 03:
And one is that political affiliation was a substantial or motivating factor in the decision.

[00:01:31] Speaker 03:
And then the second is whether or not there was a duty of loyalty associated with this position.

[00:01:38] Speaker 01:
Now- Counsel, I hate to ask, but is there a preservation problem on appeal here or a waiver problem on appeal with the political association claim?

[00:01:45] Speaker 01:
You really develop your arguments and reply more than you do in your opening briefs.

[00:01:49] Speaker 01:
Is that a problem for us?

[00:01:52] Speaker 03:
Well, I don't think so, Your Honor.

[00:01:53] Speaker 03:
I think we did address the essential elements of the political association case.

[00:01:58] Speaker 03:
The facts on that are pretty simple.

[00:02:01] Speaker 03:
And what we explained on that is that Commissioner Doak, who made the decision, thought that Mr. Avant did not support him.

[00:02:11] Speaker 03:
He fired him on his belief that Mr. Avant was repeating a political argument his opponent had made in the race and says that was the principal reason.

[00:02:23] Speaker 03:
That, in statements attributed to Mr. Avant about

[00:02:28] Speaker 03:
not about the impropriety of working a sex offender close to school resources.

[00:02:39] Speaker 03:
And both of those things are factually established within the context of the declarations that Mr. Doak made in his first summary judgment motion.

[00:02:49] Speaker 01:
So it's your position that you've adequately advanced that challenge on appeal?

[00:02:55] Speaker 01:
I believe so.

[00:02:56] Speaker 01:
What about on the reconsideration issue?

[00:03:00] Speaker 01:
In the district court, and I think the district court said as much, you didn't specifically litigate this question of whether Avent 2, imported now on remand, affects the Heffernan defense.

[00:03:13] Speaker 01:
You didn't advance any arguments about that.

[00:03:16] Speaker 01:
And what should we do with that on the appeal?

[00:03:20] Speaker 03:
We opposed it, we did not devote a separate proposition to the Heffernan defense versus the reconsideration of the First Amendment retaliation claim.

[00:03:32] Speaker 03:
But both of those issues were premised on only one argument on the part of the defendant, Pelley here, and that is that the lack of a mandate

[00:03:46] Speaker 03:
for to conduct an investigation required reversal on that basis.

[00:03:54] Speaker 03:
And we address that specifically at the heart of the argument.

[00:03:58] Speaker 03:
We said,

[00:04:00] Speaker 03:
That order of the 10th Circuit said that it's not a mandate, but it never said it's not relevant to it.

[00:04:07] Speaker 03:
And there's plenty of case law that says the failure to conduct an investigation is the fact that can be considered by the trier effect as to the reasonableness of the conclusions that were made.

[00:04:20] Speaker 03:
So there is only one argument, one legal argument to reshoot.

[00:04:24] Speaker 03:
And we did directly reshoot that.

[00:04:28] Speaker 04:
I guess what on the Heffernan defense, the confusion I have is that at least at two points, it's my understanding in the briefing in this case, you did contest whether the Heffernan defense was viable, but on reconsideration you did not.

[00:04:46] Speaker 04:
And I guess what that often leads to is a question of abandonment.

[00:04:53] Speaker 04:
In other words, it becomes a waiver by virtue of abandonment because the district court is looking, why aren't you addressing the same argument that you addressed before?

[00:05:02] Speaker 04:
And in the sort of winnowing process of litigation, it's not unheard of that people just drop

[00:05:08] Speaker 04:
arguments and so I'm struggling.

[00:05:11] Speaker 04:
What do I do with that?

[00:05:13] Speaker 03:
Well, Your Honor, with regard to the arguments that we've made twice previously where the court had denied the Hefford and Defense, he found certain things which ultimately became the foundation for granting that.

[00:05:29] Speaker 03:
But under servants of the Pericles, I believe it's the nation of it, we're not supposed to rehash those on reconsideration.

[00:05:39] Speaker 03:
If we don't have a new facts or new law on those points, then- Well, you're not the movement on reconsider.

[00:05:45] Speaker 01:
I mean, you were the responding to a motion to reconsider.

[00:05:47] Speaker 03:
And that's true.

[00:05:48] Speaker 03:
But as I understand it, if the position is that the court has made a finding that there's a neutral

[00:05:56] Speaker 03:
policy and that the defendants were following that policy and we don't have new facts to argue with regard to that, we're not supposed to rehash the prior argument.

[00:06:06] Speaker 03:
I mean the nature of reconsideration is based upon new facts or new law.

[00:06:13] Speaker 01:
And wasn't the argument on reconsideration based on new law or at least the

[00:06:18] Speaker 01:
interpretation of new law?

[00:06:19] Speaker 03:
Well, it was on the interpretation of new law, but that is what we addressed in our response.

[00:06:24] Speaker 03:
We said they're claiming that because an investigation is not mandatory, you have to reconsider both the First Amendment ruling and the Heffernan defense.

[00:06:35] Speaker 03:
And what we said is the court's ruling doesn't say that.

[00:06:38] Speaker 03:
The court's ruling says an investigation is not mandatory.

[00:06:43] Speaker 03:
This court never said that it was irrelevant.

[00:06:46] Speaker 03:
that it wasn't something that could be considered.

[00:06:48] Speaker 03:
And we set that forth, I think, very clearly.

[00:06:52] Speaker 04:
Yes, but they affirmatively raised again the Heffman defense.

[00:06:56] Speaker 04:
And so I guess the problem becomes that if, again, servant to the point that Judge Rossman makes, I mean, that controls what the movement can bring.

[00:07:07] Speaker 04:
It doesn't talk about what you need to respond to.

[00:07:09] Speaker 04:
And as things turn out, that became a basis for the court to grant relief.

[00:07:16] Speaker 04:
So, I mean, so where you're in a posture they're seeking to raise the defense, you've raised it twice before, whether they were right to do it or not, that's another issue.

[00:07:28] Speaker 04:
Weren't you called upon to address it?

[00:07:30] Speaker 04:
Because if you didn't, we're in the posture that we're in now.

[00:07:33] Speaker 03:
Well, the only argument that they made with regard to renewing the Heffernan defense was to say the court has previously ruled on these two points, which the court had previously ruled on.

[00:07:45] Speaker 03:
the basis for the change is that an investigation is not mandatory.

[00:07:53] Speaker 03:
Now, perhaps as a responding party, I could go back and revisit all the arguments that I'd made previously with regard to that, but I think it's appropriate to assume that the court is aware of those.

[00:08:06] Speaker 01:
That's more than twice.

[00:08:08] Speaker 01:
And I don't think my understanding of the law is not that you have necessarily an obligation as the respond

[00:08:14] Speaker 01:
then to the motion reconsideration to rehash, but if there's a new argument that justifies the existence of the motion for reconsideration was an argument based on new law, or at least again, the interpretation of Avon II.

[00:08:30] Speaker 01:
It seems as though that is new, that very narrow issue is new and would have required a response.

[00:08:38] Speaker 01:
And granted, I don't think that it was clear from the motion for reconsideration.

[00:08:42] Speaker 01:
There was only one heading.

[00:08:43] Speaker 01:
It was not clear that there were two arguments, but there were two arguments, and this report so understood.

[00:08:48] Speaker 03:
Well, the district court said we did not directly respond to that argument.

[00:08:54] Speaker 03:
The point on that is there was only one argument as to both points, as to reconsideration on the First Amendment claim, which the judge denied, and then as to reconsideration on the Heffernan case.

[00:09:08] Speaker 03:
And it was one argument applicable to both, and that is

[00:09:13] Speaker 03:
because you don't have to conduct an investigation, therefore we should win.

[00:09:18] Speaker 03:
And we directly responded to that one argument that went to both of the issues on it.

[00:09:26] Speaker 03:
We explained specifically that

[00:09:30] Speaker 03:
The court said you don't have to conduct an investigation.

[00:09:33] Speaker 03:
The court never said that the presence or absence of an investigation is irrelevant.

[00:09:40] Speaker 03:
We went further and said that the case law within the circuit has pretty much uniformly recognized that the presence or absence of an investigation, the adequacy of the investigation, remains relevant.

[00:09:57] Speaker 03:
So, I mean, I don't know that there's a more direct response we could make to that one argument.

[00:10:05] Speaker 01:
What do you understand the holding in AVANT 2 to be?

[00:10:10] Speaker 01:
What do you understand the holding of that case to be?

[00:10:12] Speaker 03:
The holding of the case was on qualified immunity.

[00:10:14] Speaker 03:
It didn't have anything to do with Heffron, nor did it have anything to do with the First Amendment retaliation case.

[00:10:22] Speaker 03:
It was based on qualified immunity, suggesting that because the manner of determining

[00:10:28] Speaker 03:
the reasonableness of the decision-maker's belief had not been clearly set out by this court, then the law was uncertain on that issue which the court deemed to be essential to a qualified immunity defense.

[00:10:44] Speaker 01:
And it was under an element of Garcetti pickering analysis, right?

[00:10:48] Speaker 01:
It was pursuant to an element of the Garcetti-Pickering analysis, right?

[00:10:51] Speaker 01:
That was the focus, which you said?

[00:10:54] Speaker 01:
Yes.

[00:10:54] Speaker 01:
I guess my question is just to be clear.

[00:10:57] Speaker 01:
I'm trying to understand if, assuming we

[00:11:02] Speaker 01:
to find that you adequately preserved this, what your position on the law is, whether the holding and mandate in Avon II has anything at all to do with Heffernan.

[00:11:14] Speaker 03:
And the answer is no.

[00:11:15] Speaker 01:
And why is that?

[00:11:16] Speaker 03:
Because the holding in Avon II didn't say anything about Heffernan.

[00:11:20] Speaker 03:
It did not address that issue at all.

[00:11:22] Speaker 03:
It did not address the propriety of the court's First Amendment.

[00:11:28] Speaker 03:
retaliation ruling, which said there were sufficient facts on that, it addressed only the issue of qualified immunity.

[00:11:36] Speaker 03:
And on the issue of qualified immunity, it made the holding that the standard toward determination of a good faith belief were not clearly established.

[00:11:46] Speaker 03:
Therefore, the law was not clearly established on that point.

[00:11:51] Speaker 03:
But that's not the controlling point on either the First Amendment issue or on the affidavit issue.

[00:12:04] Speaker 03:
Okay, so with regard to the political association issue, what we showed was that Doak thought our client was opposing him, that he was using a statement that he attributed to the opponent's campaign when they had circulated as part of the election.

[00:12:25] Speaker 03:
and then he said that that was a primary reason for his termination.

[00:12:30] Speaker 03:
Now he didn't say that was because of his apparent support

[00:12:37] Speaker 03:
But certainly a jury could draw that reasonable interest.

[00:12:40] Speaker 04:
And it's your view, is it not, that the district court misconstrued the nature of the political affiliation claim as resting on his son and his wife, right?

[00:12:52] Speaker 04:
That's correct.

[00:12:54] Speaker 04:
Well, then I guess my follow-up is simply, if that's true, and I'm thinking remedy, let's assume we agree with you.

[00:13:02] Speaker 04:
Do you think the appropriate thing to do is to rent remand to allow the district court to under the right understanding of your claim address the summary judgment issue?

[00:13:12] Speaker 03:
Yes, your honor.

[00:13:13] Speaker 03:
That's the norm.

[00:13:14] Speaker 03:
This court has often said it's not a fact finder will not make fact findings as an initial matter here.

[00:13:22] Speaker 03:
There are exceptions to that, but the normal would be to remand.

[00:13:31] Speaker 03:
Now, we did address

[00:13:34] Speaker 03:
the variety of reasons why we had always argued that the Heffernan defense did not apply.

[00:13:41] Speaker 03:
There is one salient point.

[00:13:43] Speaker 03:
It's in the firmness defense.

[00:13:45] Speaker 03:
The defendant, therefore, has the burden of proof as to each of the elements of the defense.

[00:13:50] Speaker 03:
One of the elements of that defense is plainly that you have to show equal application of it.

[00:13:59] Speaker 03:
And the defendant never presented any evidence on that.

[00:14:03] Speaker 03:
The court never addressed that element, although it was plainly part of the description of what a Heffernan defense requires.

[00:14:13] Speaker 03:
They said that we didn't offer any evidence that wouldn't be our burden, but as a matter of fact, we presented evidence that, of these two statements, one about the coworker with the sex defense,

[00:14:27] Speaker 03:
that that was discussed widely among other employees who were not disciplined at all, which at least calls into question whether or not there's an equal application, because it's one of the same issues they're relying on, one of the things that he said he made his final decision on.

[00:14:48] Speaker 03:
And we showed that there's at least conflicting evidence that he never cared about that when other employees raised him.

[00:14:56] Speaker 03:
I do want to stress, though, one of the critical things is, is there a burden to show that there's a neutral policy that meets constitutional standards, that the defendant's actually following that, and that it was equally applied?

[00:15:13] Speaker 01:
Do you agree that in Avon 1,

[00:15:16] Speaker 01:
A panel of this court looked at the evidence, the record evidence on Heffernan.

[00:15:23] Speaker 01:
It's efficient.

[00:15:24] Speaker 01:
You can go on and develop the record on that.

[00:15:28] Speaker 01:
What is your position on what happened?

[00:15:31] Speaker 01:
In other words, is the state of the evidence on the Heffernan defense

[00:15:34] Speaker 01:
today, the same as it was before the panel and Avon 1?

[00:15:38] Speaker 03:
In my view, yes.

[00:15:40] Speaker 03:
And that's one of the things we said when they raised it again on the second summary judgment motion is that you have still have not addressed all of the elements of the Heffernan climate and have not shown that they're established.

[00:15:55] Speaker 03:
Now, the one that was not

[00:15:57] Speaker 03:
discussed it all with no facts at all was the equal application, which we pointed out at that time.

[00:16:04] Speaker 03:
And that simply never has been addressed.

[00:16:08] Speaker 03:
There's nothing in the record.

[00:16:09] Speaker 03:
There's an explanation that is offered as the attorney's explanation

[00:16:16] Speaker 03:
But there's no testimony, there's no affidavit.

[00:16:20] Speaker 03:
It's simply an argument, and arguments don't suffice for evidence.

[00:16:25] Speaker 03:
I've noticed that I've gone over my time, Your Honor.

[00:16:28] Speaker 03:
Yes.

[00:16:29] Speaker 03:
Thank you.

[00:16:29] Speaker 03:
Thank you.

[00:16:30] Speaker 03:
Thank you, Counselor.

[00:16:42] Speaker 02:
Good morning, Your Honors.

[00:16:43] Speaker 02:
May it please the court?

[00:16:44] Speaker 02:
My name is Allison Levine.

[00:16:46] Speaker 02:
I represent Commissioner Doak and his individual and official capacity as County Commissioner from Skokie County, Oklahoma.

[00:16:53] Speaker 02:
As I'm sure you're aware, this case is now before the 10th Circuit for the third time.

[00:17:01] Speaker 02:
It is clear that the district court has made some missteps during the course of litigation, but there are two issues with which the district court has absolutely decided correctly, and that is that summary judgment was correctly granted to Commissioner Doak and his individual and official capacities on the political association claim

[00:17:19] Speaker 02:
and that the district court correctly applied the Heffernan defense to the official capacity free speech claim.

[00:17:27] Speaker 02:
In terms of, to Judge Rosman's point earlier about AVANT 1, I just want to clarify that the Heffernan defense was not raised during summary judgment before AVANT 1.

[00:17:43] Speaker 02:
That's because there was no free speech claim at that point.

[00:17:46] Speaker 02:
It was only the political association claim.

[00:17:49] Speaker 02:
And in fact, the district court denied plaintiff's request to amend his complaint to add the free speech claim.

[00:17:58] Speaker 02:
It's still not in the complaint.

[00:18:00] Speaker 02:
The request was denied, yet here we are and we have a ruling on the free speech claim.

[00:18:06] Speaker 02:
So I just want to make sure that that is clear.

[00:18:12] Speaker 02:
In terms of AVANT 2,

[00:18:13] Speaker 02:
The AVANT 2 decision did address the Garcetti Pickering Analysis, particularly as it related to the element of public concern.

[00:18:25] Speaker 02:
And so what we have here is a situation of not actual speech, but perceived speech.

[00:18:33] Speaker 02:
Mr. AVANT has claimed throughout litigation and

[00:18:36] Speaker 02:
And Commissioner Doak has accepted that that is the claim and not challenged it, that Mr. Avant did not actually make the speech in question.

[00:18:47] Speaker 02:
And what Avant II clarified was that it was not clearly established that the perceived speech was on a matter of public concern.

[00:19:00] Speaker 02:
Once AVANT 2 was decided, Commissioner Doak filed a motion to reconsider, which asked for reconsideration of the denial of summary judgment on the official capacity free speech claim.

[00:19:14] Speaker 02:
The district court had previously said that there was a requirement to reasonably investigate whether the speech was made and what the content and purpose of the speech was before terminating someone pursuant to a neutral policy.

[00:19:33] Speaker 02:
Amant 2 held that the district court was incorrect on that, that there was no such requirement.

[00:19:40] Speaker 02:
So based on the court's previous

[00:19:43] Speaker 02:
finding that there was a neutral policy and that Commissioner Doak was following it when he terminated Mr. Avant, we requested reconsideration and that was granted.

[00:19:56] Speaker 02:
And as you are aware,

[00:19:58] Speaker 02:
Mr. Avant did not respond to that in his response to the motion to reconsider.

[00:20:04] Speaker 02:
He let that portion go even though there were definitely two distinct arguments.

[00:20:09] Speaker 01:
Well, it's hard to tell from the motion for reconsideration that there were two distinct arguments.

[00:20:12] Speaker 01:
There was one heading and it seemed to focus on an issue that we're not even talking about today.

[00:20:16] Speaker 02:
There was one heading.

[00:20:19] Speaker 02:
In hindsight, I think we would break that up into two headings, but we were attempting to not rehash all the arguments that were raised before and just succinctly and briefly focus on the change in law after ABAMP 2.

[00:20:36] Speaker 02:
So the argument was definitely there.

[00:20:38] Speaker 02:
The district court recognized that it was there.

[00:20:41] Speaker 02:
And they decided correctly based on that motion to reconsider.

[00:20:48] Speaker 00:
Well, let's assume we disagree with you and the plaintiff didn't recognize that the argument was there based on how you formatted it, even if the district court did.

[00:20:57] Speaker 00:
How do you proceed on the merits of the issue?

[00:21:03] Speaker 00:
Are you asking if?

[00:21:06] Speaker 00:
If the issue was raised,

[00:21:08] Speaker 00:
He didn't address it, so he's preserved the arguments.

[00:21:11] Speaker 00:
Okay, if he is preserved, how we go forward with that.

[00:21:16] Speaker 00:
In that case, it's clear that... It's a question of fact, isn't it?

[00:21:25] Speaker 00:
whether that defense has been established?

[00:21:28] Speaker 02:
No, I don't think it is.

[00:21:30] Speaker 02:
I think it's a matter clear.

[00:21:33] Speaker 02:
It's just a matter of law.

[00:21:35] Speaker 02:
The Heverman defense, it can be summarized, you know, as this an employer does not violate the First Amendment when he restricts speech in a neutral and constitutional manner.

[00:21:46] Speaker 02:
And the three factors to consider are whether the policy exists, whether the supervisor was following the policy, and whether the policy was neutral in terms of constitutional standards for matriarchy.

[00:22:00] Speaker 02:
And the evidence clearly shows that the policy existed.

[00:22:05] Speaker 02:
In this case, the policy required employees to

[00:22:10] Speaker 02:
exhibit a high degree of personal integrity, exhibit respect.

[00:22:14] Speaker 00:
I know what the policy was, and I know they're saying that that was, you know, the policy that was violated here, but what about everybody else?

[00:22:24] Speaker 00:
There apparently was a lot of gossip going on about the sex offender who was, you know, living too close to a school.

[00:22:31] Speaker 00:
Did anybody else get terminated for that?

[00:22:33] Speaker 00:
How was the policy applied?

[00:22:36] Speaker 00:
Was it evenly applied?

[00:22:38] Speaker 00:
The policy, what we have here... Was it ever applied?

[00:22:41] Speaker 02:
That is the issue.

[00:22:43] Speaker 02:
This is the first instance of a situation where members of the public have come to Commissioner Doak and complained about the conduct and the speech and the mannerisms of a county employee.

[00:23:01] Speaker 00:
So it can't be applied unless somebody complains to Commissioner Doak about it?

[00:23:06] Speaker 00:
He can't just know that there's this gossip going on and do something about it?

[00:23:10] Speaker 02:
There's a big difference between gossip going around in general and someone taking the time and being so offended and thinking it's about them personally, that they come to a person's employer and say, this is unacceptable.

[00:23:29] Speaker 02:
This has to stop.

[00:23:31] Speaker 04:
So is it your view that under this notion of equal application,

[00:23:35] Speaker 04:
that this unique nature of somebody coming to Doak creates a situation where there really are no comparators.

[00:23:45] Speaker 04:
In other words, you couldn't say that somebody similarly situated didn't get the same discipline.

[00:23:51] Speaker 02:
Correct.

[00:23:52] Speaker 02:
That is exactly right.

[00:23:53] Speaker 02:
There was nobody else similarly situated.

[00:23:56] Speaker 02:
If this had been a situation where in terms of the complaints made by Chad and Chris,

[00:24:03] Speaker 02:
Rowland about the Oktaharo events project.

[00:24:09] Speaker 02:
If that had been a situation where it was just gossip around the community or gossip around the District 1 barn, that would be one thing.

[00:24:17] Speaker 02:
This is an entirely different level.

[00:24:19] Speaker 02:
And to this point, none of Commissioner Doak's employees had ever taken it to that level.

[00:24:28] Speaker 02:
The actions that were attributed to Mr. Avant were so egregious, it was the first time that Commissioner Doak had encountered that.

[00:24:37] Speaker 02:
So Mr. Avand has argued that in order to use the Heffernan defense, we have to establish that we had previously terminated people for the same infraction, but there was never an occasion where this same infraction had occurred.

[00:24:55] Speaker 01:
So how have you satisfied the requirement to show equal application to all?

[00:25:01] Speaker 01:
No application?

[00:25:03] Speaker 02:
Yes, I would say just establishing that this was the first instance of behavior of this type is sufficient to satisfy that in this case, because I don't think there's anything in the Duda versus Elder case, which is the case that recognized the Heffernan defense and explained the parameters of it clearly.

[00:25:24] Speaker 02:
There's nothing in that which says you can only use the Heffernan defense

[00:25:30] Speaker 02:
after you have terminated other employees for the same or similar, equal, comparable, however you want to call it, for the same offenses.

[00:25:43] Speaker 01:
So I want to go back to event one because you're

[00:25:49] Speaker 01:
In your presentation, you were clarifying that, well, back then, Heffernan wasn't really even in the case yet because of the nature of the claim and query whether your client was going to invoke it.

[00:26:02] Speaker 01:
Even with those caveats, though, the panel said the evidence is insufficient to determine if the policy existed, what its contours were, whether Commissioner

[00:26:11] Speaker 01:
Dope applied it equally to all, et cetera, and the party should be permitted to develop the record relevant to this defense if your client chooses to invoke it, right?

[00:26:19] Speaker 01:
Yes.

[00:26:19] Speaker 01:
So your client chose to invoke it.

[00:26:21] Speaker 01:
Yes.

[00:26:21] Speaker 01:
And so my question is, is the evidence now the same as it was then when another panel of the court deemed that it was insufficient?

[00:26:30] Speaker 01:
You had an opportunity to develop the record.

[00:26:33] Speaker 01:
And in order to prevail as a matter of law, the record needs to only permit us to do one thing in your favor, right?

[00:26:38] Speaker 01:
So I want to understand exactly how you developed the record such that these elements all can be decided in your favor as a matter of law.

[00:26:46] Speaker 02:
OK.

[00:26:47] Speaker 02:
So prior to event one, what we had submitted in support of summary judgment was just materials in support of the political association claim, which was not related

[00:26:59] Speaker 02:
which did not include the free speech at that time.

[00:27:03] Speaker 02:
So the policy had not been submitted to the court.

[00:27:05] Speaker 02:
So in our second motion for summary judgment on the unplugged free speech retaliation claim, we submitted the

[00:27:17] Speaker 02:
policy under which Mr. Avant was terminated and we cited two testimony from other employees regarding gossip, Mr. Avant's behavior at work and also additional affidavits from Mr.

[00:27:38] Speaker 01:
Bob Burgess.

[00:27:39] Speaker 01:
I understand the policy didn't exist in Avon one times exists now, correct?

[00:27:46] Speaker 02:
The policy was in effect the entire time.

[00:27:48] Speaker 01:
It was in effect, but it wasn't part of the case.

[00:27:51] Speaker 01:
These affidavits that you're describing, what elements do they go to for Heffernan?

[00:27:57] Speaker 02:
The elements of the Heffernan defense that they go to were the equal application and whether the policy was

[00:28:10] Speaker 01:
Well, basically that he was following the policy.

[00:28:12] Speaker 01:
And is that evidence of this is the first time this has ever happened?

[00:28:15] Speaker 01:
Is that what the?

[00:28:16] Speaker 02:
Yes, yes, I believe so.

[00:28:23] Speaker 02:
And again, I will note in terms of whether they were, whether Commissioner Doe was following the policy and whether it was on a matter of public concern, Mr.

[00:28:38] Speaker 02:
Commissioner Doak did consult with the district attorney with Mr. Burgess, the supervisor, with the interim supervisor prior to terminating Mr. Avant.

[00:28:50] Speaker 02:
And so we had complaints from two different members of the community about Mr. Avant's behavior.

[00:28:56] Speaker 02:
We had the opinion of Commissioner Doak that the

[00:29:00] Speaker 02:
What the gossip was about was not a matter of public concern, but it was instead a personal agreement.

[00:29:08] Speaker 02:
That was the opinion of Mr. Burgess and Commissioner Goak.

[00:29:13] Speaker 02:
And they checked with the district attorney to make sure that they were following policy and that the conduct in question violated that policy.

[00:29:21] Speaker 02:
So it was the opinion of five different people, two from the community, an attorney, and two employees that supervised

[00:29:30] Speaker 02:
Actually three, the interim supervisor Steve DeShalla was consulted as well.

[00:29:35] Speaker 02:
His opinion was that Mr. Avan's work was poor, his attitude was poor, and that if it were up to him, he would recommend termination.

[00:29:44] Speaker 02:
So that taken into consideration with the fact that Commissioner Doak and Mr. Burgess did not believe it was a matter of public concern, the Heffernan defense applies.

[00:29:57] Speaker 02:
And even if the Heffernan defense does not apply, because Commissioner Doak and Bob Burgess did not believe that it was a matter of public concern, then

[00:30:10] Speaker 02:
He hasn't satisfied, Mr. Avant has not satisfied the Garcetti Pickering Analysis.

[00:30:17] Speaker 04:
And... And how is that so?

[00:30:18] Speaker 04:
Garcetti Public Concern is an objective consideration, right?

[00:30:23] Speaker 02:
I think what Avant too made clear was that it's not necessarily an objective consideration.

[00:30:30] Speaker 02:
That normally, in a free speech case, you would look to the form and the content

[00:30:39] Speaker 02:
context of the speech itself to determine what its purpose was and whether it was on a matter of public concern.

[00:30:46] Speaker 02:
When you have a perceived speech claim, the opinion that matters was the opinion of the people that claimed to have heard the speech and the supervisor's opinion.

[00:31:02] Speaker 02:
Burgess and Doak did not believe that Mr. Avant was trying to bring misconduct to light, but was instead gossiping and airing personal grievances.

[00:31:10] Speaker 02:
And that kind of speech is not protected.

[00:31:13] Speaker 02:
And it is their understanding of the speech's meaning and intent, which determines whether it was on a matter of public concern and whether a constitutional violation occurred.

[00:31:23] Speaker 02:
And I mean, I believe that's what the court and Avant II made clear.

[00:31:29] Speaker 01:
So again, there were,

[00:31:30] Speaker 01:
Before your time is up, I wanted to ask you a question.

[00:31:34] Speaker 01:
You challenged the adequacy of the pleadings.

[00:31:39] Speaker 01:
Yes.

[00:31:40] Speaker 01:
Do you agree that you probably needed to cross a field to make that argument?

[00:31:45] Speaker 02:
Yes, and we did not.

[00:31:47] Speaker 02:
We had reached a point where, again, we are here for the third time, and at some point the district court

[00:31:56] Speaker 02:
made the decision that the claim was out there.

[00:31:58] Speaker 02:
I don't think technically, legally it was, but I believe they did their best, the district court did its best to cure that or make up for that in terms of allowing an unplugged claim to go forward, but at the same time allowing our affirmative defense to go forward.

[00:32:18] Speaker 02:
I think that essentially canceled each other out.

[00:32:22] Speaker 02:
And here we are with a ruling that I think if it went back, just on that technical issue of whether the pleadings were adequate, we would be right back to the same summary judgment for the third time.

[00:32:39] Speaker 01:
Right, but that's in Avon, too.

[00:32:42] Speaker 01:
We didn't have jurisdiction to consider the adequacy of the pleadings argument because it was an interlocutory appeal.

[00:32:47] Speaker 01:
And this time, we're not considering it either because you didn't cross appeal.

[00:32:49] Speaker 01:
Is that fair?

[00:32:51] Speaker 01:
That is fair.

[00:32:54] Speaker 02:
Time is up.

[00:32:55] Speaker 02:
If there are no more questions, I'll ask you to affirm the district court's ruling and say thank you.

[00:33:02] Speaker 04:
Thank you, Council.

[00:33:03] Speaker 04:
One minute if you want it, Mr. Ames.

[00:33:08] Speaker 03:
To summarize, if they wanted to raise the issue that this was a unique circumstance, therefore they could not have a comparison, there's no evidence of that.

[00:33:19] Speaker 03:
Doak didn't say that, that's an argument of council only.

[00:33:24] Speaker 03:
With regard to the fact that there were two points that Doak considered to be important and one of them clearly had

[00:33:34] Speaker 03:
been developed and we pointed out had nobody ever been punished for that, that's undisputed.

[00:33:41] Speaker 03:
It is their burden to set out a factual basis for why any exception or deviation from that should take place.

[00:33:50] Speaker 03:
And I do have to mention, Doak initially conceded that this was a matter of public concern when we asked him about that.

[00:33:59] Speaker 03:
We asked him whether or not a reported criminal activity would be a matter of public concern.

[00:34:06] Speaker 03:
He said, yeah, it would be.

[00:34:08] Speaker 03:
With regard to the DA,

[00:34:11] Speaker 03:
There's no evidence in the record what the DA said, what he was asked, or what information was presented to him, which we pointed out in our responses.

[00:34:23] Speaker 03:
Thank you.

[00:34:23] Speaker 03:
Thank you, counsel.

[00:34:24] Speaker 03:
Case is submitted.