[00:00:01] Speaker 02:
We have four arguments on our docket this morning.

[00:00:05] Speaker 02:
We'll probably take a break at some point after the second or third case.

[00:00:12] Speaker 02:
We can start now with 23-1306, McNellis versus Douglas County School District.

[00:00:20] Speaker 02:
Mr. Kontnik, is that right?

[00:00:35] Speaker ?:
Okay.

[00:00:36] Speaker 00:
May I please the court, when considering this appeal, there have been several claims that were set forth by the plaintiff, Corey McNullis, in this case.

[00:00:46] Speaker 00:
Fundamentally, though, there are three questions that the court should evaluate when considering the merits of this appeal.

[00:00:53] Speaker 00:
First, whether it's plausible that Corey McNullis was speaking in his capacity as a father when he sent emails in response to the play about the Red Amer Project.

[00:01:07] Speaker 00:
Second, whether the school district intended to create a public forum by sending an initial email out to the entire Ponderosa community staff about the play.

[00:01:21] Speaker 00:
And third, whether it's plausible that the school district board terminated Mr. McNallis because of his emails related to the play.

[00:01:32] Speaker 00:
First, in Davis v. Utah, a panel of this court held that speech generally falls outside of an official duties when the matter on which the employee speaks is not within the employee's assigned responsibilities or the employee has no duty to report the person or entity with whom the employee discusses the issue.

[00:01:54] Speaker 00:
Respectfully, there is no issue with respect to the duty to report.

[00:02:00] Speaker 00:
The issue in this case centers around the first problem, whether or not the employee is speaking within the employee's assigned responsibilities.

[00:02:10] Speaker 00:
In this case, we are fortunate because we have the actual emails that constitute the speech.

[00:02:16] Speaker 00:
So, unlike having to address just the merits from the complaint, we can also look to

[00:02:23] Speaker 00:
exhibit C to the motion to dismiss, which is the actual email that constitutes the protective speech in this case.

[00:02:32] Speaker 00:
When you look at the email, and this is up 137, the first thing that really stands out about the email is that it was an email from the theater director to the entire Ponderosa staff.

[00:02:48] Speaker 00:
And the title of the email is the Rare Amer Project October 23-24 Letter from Ambassadors and Tickets.

[00:02:57] Speaker 00:
This is an email to the entire staff talking about a play that the theater teacher and the technical theater teacher had selected specifically the Rare Amer Project.

[00:03:10] Speaker 02:
Even though that was sent to all the employees,

[00:03:14] Speaker 02:
He had a special relationship to student activities because of a committee he belonged to.

[00:03:22] Speaker 02:
Is that correct?

[00:03:25] Speaker 00:
So he was part of the administrative team.

[00:03:28] Speaker 00:
And as part of the administrative team, he was responsible for executive functions in the school.

[00:03:35] Speaker 00:
But he was not responsible for producing the school play, selecting the school play, advertising the school play.

[00:03:44] Speaker 00:
As you can tell from this email, in fact, the school play had already been selected.

[00:03:48] Speaker 00:
And there was already an ambassador crew that had been selected that was responsible for doing

[00:03:55] Speaker 00:
public outreach to the Ponderosa community.

[00:03:58] Speaker 02:
Had that gone through his committee before then?

[00:04:01] Speaker 02:
Had there been any discussion of the play within that committee before the email sent to the... No, I do not believe so.

[00:04:14] Speaker 00:
That is not an issue that arises in the complaint.

[00:04:18] Speaker 00:
That is something that ended up coming up in the course of discovery.

[00:04:22] Speaker 00:
But

[00:04:23] Speaker 00:
Mr. McNerris really was commenting on the play based on the first impression that he got from this email and that's actually evident in his response because if you look on F138

[00:04:37] Speaker 00:
which is his first response to the email, he writes, thanks, Kyra.

[00:04:42] Speaker 00:
I appreciate the email, and I really do admire the work that you do.

[00:04:47] Speaker 00:
As a dad of a student here and also as an employee in this school, what is my recourse if I disagree with the production?

[00:04:56] Speaker 01:
Council, that's where I'm stuck is I'm trying to understand where our focus should be in analyzing your first issue.

[00:05:04] Speaker 01:
Is it that there is a disclaimer in his speech?

[00:05:07] Speaker 01:
He's saying, I'm speaking as a dad, also as an employee, but as a dad.

[00:05:13] Speaker 01:
Is that disclaimer doing the work for purposes of your claim, irrespective of what the subject matter is of the email?

[00:05:22] Speaker 01:
I guess I'm just trying to understand how much emphasis you'd like us to put on that.

[00:05:30] Speaker 00:
So I think the emphasis is critical that the court reads both this email and then the email which occurs two pages, three pages later on app 141.

[00:05:43] Speaker 00:
And this is an email from Mr. McNellis stating, for the record, all of administration did not agree with me on this.

[00:05:51] Speaker 00:
I'm totally sober.

[00:05:53] Speaker 00:
I think the court needs to place

[00:05:55] Speaker 00:
A particular emphasis on that, especially considering that this is a Rule 12 motion, to dismiss saying that the claim is not even plausible.

[00:06:04] Speaker 00:
Mr. McNallis here is stating that he is acting totally solo.

[00:06:07] Speaker 00:
He is not acting in his administrative function.

[00:06:10] Speaker 00:
He's not acting within the scope of his professional responsibilities.

[00:06:14] Speaker 00:
For the court to determine otherwise would be to reject the plain language of Mr. McNallis' email.

[00:06:22] Speaker 00:
And that would be highly problematic, because it's going to lead to an arbitrary decision-making process with respect to First Amendment claims.

[00:06:33] Speaker 03:
inevitable that the fact that prong one of Garcetti Pickering involves adjudication of this as a matter of law, that we have to take the allegations in the complaint and the facts are essentially undisputed and determine whether or not

[00:06:59] Speaker 03:
These emails from Mr. McNellis were either consistent with his job duties or not.

[00:07:09] Speaker 03:
And doesn't that, to some extent, obviate the ordinary emphasis on plausibility under 12b6?

[00:07:19] Speaker 00:
So in this circumstance, I would say no, because the analysis here really fundamentally centers around what his job responsibilities are.

[00:07:28] Speaker 00:
And that's why I think it's so critical to look at the merits of each individual case.

[00:07:33] Speaker 00:
The district court relied on Bourne, which is the case in the Fourth Circuit, where there was a dispute between a theater teacher and her boss, the administrator of the school, regarding which play that would be selected.

[00:07:48] Speaker 00:
In that case, it's fundamentally different, because you're evaluating a situation where the theater directors

[00:07:56] Speaker 00:
core job responsibility was to select a play, promote the play, and put on the play.

[00:08:02] Speaker 00:
Here, we're looking at a very different type of situation where Mr. McNellis was not responsible for producing the players, selecting the play.

[00:08:10] Speaker 00:
He would simply commentate on the play as a dad of the student.

[00:08:13] Speaker 00:
And admittedly, it's a controversial play.

[00:08:16] Speaker 00:
So I think in the context of taking the emails at face value and evaluating them, you have to consider

[00:08:23] Speaker 00:
what stage of the litigation that we're at and the purpose of the emails.

[00:08:27] Speaker 00:
The emails say what they say.

[00:08:28] Speaker 00:
That's not in dispute.

[00:08:29] Speaker 02:
The email was to all employees.

[00:08:33] Speaker 02:
So it wasn't his response to that email pursuant to his duties as an employee of the school system.

[00:08:45] Speaker 02:
Whether or not he belonged to that committee that reviewed extracurricular activities.

[00:08:55] Speaker 00:
So I think the crux of the analysis really needs to be looking at the emails and understanding in what capacity he was speaking.

[00:09:03] Speaker 00:
When you look at First Amendment claims, you need to analysis, like the central analysis, whether you're Ryan and Davis, Graham or Hawthorne, any of the other cases that this court has decided is, is that individual speaking in their public function or are they speaking in their individual capacity?

[00:09:22] Speaker 00:
And I think, you know,

[00:09:25] Speaker 00:
To answer your question there, I think the crux here is really focused on this email was sent to all of the employees.

[00:09:36] Speaker 00:
And under Lane, the Supreme Court has said that it doesn't matter if they learn of the information through virtue of public employment.

[00:09:45] Speaker 00:
The question is really focused on a fact by fact case approach to figure out, is this speech related to something that happened

[00:09:55] Speaker 00:
related to a public issue within his employment job responsibilities or is it related to something outside of his job responsibilities?

[00:10:03] Speaker 01:
You're talking about a matter of public, it needs to be a matter of public concern.

[00:10:08] Speaker 01:
What is the matter of public concern here?

[00:10:12] Speaker 00:
Yeah, and I think when you look at the matter of public concern, the email is just rife with all of the reason that this is a matter of public concern.

[00:10:22] Speaker 00:
The school district was doing outreach to the entire Ponderosa community.

[00:10:26] Speaker 00:
They were advertising the show on the internet for anyone to consume via the internet.

[00:10:34] Speaker 00:
The email from the student ambassadors even notes that this is meant to be a discussion, not a battle.

[00:10:43] Speaker 00:
We want to bring to light perspective, share human experiences, and start a conversation.

[00:10:48] Speaker 00:
So the whole email was designed to create a conversation.

[00:10:54] Speaker 00:
about the play and then Mr. McNellis responded to that email and generated a discussion which included some of his own personal beliefs but as a father of a student within that district he certainly had the right to voice those beliefs.

[00:11:09] Speaker 03:
Well, are you not conflating the public character of the play itself with an individual's response to that outreach?

[00:11:21] Speaker 03:
In other words, let's assume

[00:11:23] Speaker 03:
that the play itself does entail a matter of public concern, a hate crime based on sexual preference.

[00:11:32] Speaker 03:
But wasn't the intent that was laid out in the introductory email

[00:11:41] Speaker 03:
to inform all of the staff so that when they encounter questions, criticisms outside the school community, that people will be equipped to answer those questions.

[00:11:56] Speaker 00:
So I don't think it's very conflated in this context because it

[00:12:00] Speaker 00:
the emails demonstrate that there is a matter of public concern with respect to the play itself, right?

[00:12:06] Speaker 00:
And so we'll assume that there is a matter of public concern there.

[00:12:10] Speaker 00:
But then Mr. McNellis specifically talks about how he wants to work to collaborate with them to provide a Christian perspective to the play.

[00:12:19] Speaker 00:
And, you know, if you don't know the Lettermare Project, it's a pretty

[00:12:25] Speaker 00:
politically charged play that does not depict Christianity in the best light.

[00:12:31] Speaker 00:
And that is certainly something that is a public concern to Mr. McNallis or really any other family with students in that district who practice Christianity and believe in that faith.

[00:12:44] Speaker 00:
I think before reserving the rest of my time for rebuttal, I think it's important to note the school district's response.

[00:12:51] Speaker 00:
And they've essentially argued on appeal that they cannot be held liable because they cannot be bound through the theory of respondent superior.

[00:13:02] Speaker 00:
That sort of misses the mark in this case.

[00:13:05] Speaker 00:
In this case, we have prior to allegations that the defendant specifically told McNallis that he was terminated because of the Laramere Project emails.

[00:13:16] Speaker 00:
We also have a letter from the former principal stating that the decision to terminate him was essentially out of the principal's hands.

[00:13:27] Speaker 00:
a member of the board was aware of the decision to suspend him because of the emails and investigate him because of the emails.

[00:13:36] Speaker 00:
The decision to terminate him, the board's decision to terminate him, flowed directly from that.

[00:13:42] Speaker 00:
At this stage of the litigation, without having had the opportunity to depose the board or conduct evidence, that's about as good of evidence as you could hope to have to demonstrate that the board's subjective intent was to terminate him based on the emails.

[00:13:59] Speaker 00:
At this time, I would like to reserve the remaining minute of my time for rebuttal.

[00:14:05] Speaker 00:
And thank you.

[00:14:08] Speaker 04:
Council?

[00:14:10] Speaker 04:
Thank you, Judge Hartz, and may it please the court.

[00:14:14] Speaker 04:
If you take a practical view of the allegations in this case, the ultimate question is whether the employee was performing a task that they were paid to do when they spoke.

[00:14:25] Speaker 04:
And it's clear that the answer is that they were.

[00:14:26] Speaker 01:
Doesn't your argument require us to read the email a little differently than what it says?

[00:14:33] Speaker 01:
It sort of requires us not to think about how he cabined his own

[00:14:37] Speaker 01:
message that he was speaking not just as an employee, but I'm speaking as a dad.

[00:14:43] Speaker 01:
How do you account for that and prevail?

[00:14:45] Speaker 04:
Well, we're asking you read the entire email, not just the part that says, as a dad of a student here, and also as an employee in the school.

[00:14:55] Speaker 01:
So of course, that's a starting point.

[00:14:57] Speaker 01:
Those have to be read together, and that's what I'm asking.

[00:14:58] Speaker 01:
We're certainly not suggesting we're going

[00:15:01] Speaker 01:
pick and choose from the emails, but how do we read it holistically with that language in it?

[00:15:06] Speaker 04:
I think you read it exactly like that and as a whole, but then you say, well, what if there's some overlap?

[00:15:11] Speaker 04:
Can someone speak in a employment and in a private capacity at the same time?

[00:15:18] Speaker 04:
That's certainly possible.

[00:15:19] Speaker 04:
We're not arguing that that can't happen.

[00:15:21] Speaker 04:
But the issue is, what do you do when there's that overlap?

[00:15:25] Speaker 04:
Well, we know from Garcetti that once the employee

[00:15:30] Speaker 04:
speaks as an employee.

[00:15:32] Speaker 04:
The potential for overlap, I think, is completely immaterial and irrelevant.

[00:15:36] Speaker 04:
It can't override or swallow or obviate the employee's speech in their employment capacity.

[00:15:45] Speaker 03:
Can I follow up on that?

[00:15:46] Speaker 03:
Of course.

[00:15:48] Speaker 03:
You know, we are looking at this under 12b6, right?

[00:15:52] Speaker 03:
Absolutely.

[00:15:53] Speaker 03:
And so we do construe the allegations of the complaint favorably to Mr. McNellis, correct?

[00:15:58] Speaker 04:
Yes.

[00:15:59] Speaker 03:
And on appendix 138, in the email itself, can't we ascertain three things?

[00:16:08] Speaker 03:
One, he refers to himself, as Judge Rossman indicated, as a dad of a student.

[00:16:14] Speaker 03:
Number two, as an employee of the school,

[00:16:17] Speaker 03:
like every other recipient of the email, not as an administrator.

[00:16:22] Speaker 03:
And three, curiously, he doesn't use his authority as the assistant principal, but he asks the play director what his recourse is if he disagrees with the production.

[00:16:42] Speaker 03:
which is curious if his response is exercising his authority as the assistant principal.

[00:16:50] Speaker 03:
Putting those three things together with the gloss of 12b6, can't we reasonably construe the allegations to indicate that he was acting in his private capacity?

[00:17:03] Speaker 04:
Well, I disagree, Your Honor, and a few points to that.

[00:17:06] Speaker 04:
First of all, I agree with number one.

[00:17:08] Speaker 04:
I mean, he says, we just talked about that, right?

[00:17:10] Speaker 04:
Read the whole email and exactly what he says, and both he's saying to Dad and as an employee.

[00:17:16] Speaker 04:
Number two, I don't think, though, that you could say that he was saying employee only and not as an administrator.

[00:17:21] Speaker 04:
Look at the email signature block that he has on there.

[00:17:24] Speaker 04:
I mean, you can delete your email signature block if you want to in an email.

[00:17:27] Speaker 04:
Some people do.

[00:17:28] Speaker 04:
He didn't do that here.

[00:17:29] Speaker 04:
He left it in there.

[00:17:30] Speaker 04:
And what does it say?

[00:17:31] Speaker 04:
athletic director slash assistant principal.

[00:17:35] Speaker 04:
So he put that on his signature.

[00:17:37] Speaker 04:
So to say, oh, he's just saying employee, I don't think that that's fair.

[00:17:40] Speaker 04:
I think you have to read the signature block with his words as well.

[00:17:44] Speaker 04:
And then does he not use his authority?

[00:17:47] Speaker 04:
Well, I mean, that's an interesting question.

[00:17:49] Speaker 04:
And I don't know if we can definitively say at the pleading stage.

[00:17:53] Speaker 04:
But at this point, I think I would make clear, because you asked this question earlier, I don't think that we're relying on the plausibility standard for this argument.

[00:18:04] Speaker 04:
And that is because,

[00:18:05] Speaker 04:
You have to make a question, a termination of law, just like the district court did.

[00:18:10] Speaker 04:
So as you said before, we know what the allegations are.

[00:18:13] Speaker 04:
They're not in dispute.

[00:18:14] Speaker 04:
You read the email, but you also have to look at the full context of everything else, right?

[00:18:18] Speaker 04:
His position, what were his duties at that time as alleged in the complaint?

[00:18:22] Speaker 02:
Are you conceding that if he wasn't writing that pursuant to his authority,

[00:18:31] Speaker 02:
but just pursuant to his duty that Garcetti would not bar the claim?

[00:18:36] Speaker 04:
No, I'm not conceding that.

[00:18:37] Speaker 04:
I don't think that's the test.

[00:18:38] Speaker 04:
I just think it was an interesting characterization to question if someone is springing forth from their authority.

[00:18:45] Speaker 04:
But that isn't really the test.

[00:18:47] Speaker 04:
I mean, what we know the test is, is did the employee do something that they were paid to do?

[00:18:54] Speaker 04:
Was it within the scope of their duties?

[00:18:58] Speaker 04:
Did it further their duties in some way?

[00:19:00] Speaker 04:
And I mean, sure, you have to look at the intent of the speaker to the extent you can.

[00:19:04] Speaker 04:
And you look at all the different circumstances that you have.

[00:19:07] Speaker 04:
And we have a lot of them in this case.

[00:19:09] Speaker 04:
But that isn't to say that that one is dispositive over others.

[00:19:13] Speaker 04:
No, I don't think that that's right.

[00:19:14] Speaker 04:
And I don't think that's quite the right formulation of the test either.

[00:19:17] Speaker 04:
And let's look at all of everything that we have here.

[00:19:24] Speaker 04:
So in the second event, well first of all I just want to close on the first point, which is you have an employee here who says, I recognize as a speaker that I'm speaking, at least in part, as an employee.

[00:19:37] Speaker 04:
I don't know how you can reasonably conclude

[00:19:40] Speaker 04:
that that doesn't fall within Garcetti Pickering, when the employee characterizes it that way.

[00:19:46] Speaker 03:
But the email was addressing all of the staff, all of the emails.

[00:19:52] Speaker 03:
So if the sanitation worker were responding and saying, as an employee of the school, you're saying that why would that indicate that he or she is acting

[00:20:08] Speaker 03:
in his official as opposed to personal capacity.

[00:20:11] Speaker 03:
He doesn't say as the assistant principal, he says as an employee of the school, and then he asks the question, you know, what is my recourse if I disagree, which would put him in the same position

[00:20:26] Speaker 03:
as every other recipient of the email.

[00:20:29] Speaker 04:
Right.

[00:20:29] Speaker 04:
And one of those recipients, keep in mind, were fellow administrators of the school, including his boss, the principal of the school.

[00:20:36] Speaker 04:
So I mean, it's an assumption to say that that question, Mr. McNellis wrote, was solely focused on Ms.

[00:20:43] Speaker 04:
Diaz, the sender of the original email, could very well have been intended to reach to his boss as the principal as well and say, hey, what are we doing about this?

[00:20:51] Speaker 04:
What can we do about this?

[00:20:53] Speaker 04:
I don't like this play.

[00:20:54] Speaker 04:
I don't think this play should be happening here.

[00:20:56] Speaker 04:
And is this it?

[00:20:58] Speaker 04:
Right?

[00:20:58] Speaker 04:
I mean, and so you're saying that I'm an assistant principal of the school.

[00:21:02] Speaker 04:
I have as alleged, I have responsibility and a say in extracurricular activities.

[00:21:08] Speaker 03:
Is this it?

[00:21:09] Speaker 03:
So what about the next question?

[00:21:12] Speaker 03:
Was this a heads up to see if everyone is cool?

[00:21:15] Speaker 03:
Do you think that Mr. McNellis was asking the principal if somebody else's email was to see if everyone is cool?

[00:21:24] Speaker 03:
He's obviously referring to Kayla.

[00:21:26] Speaker 04:
Right.

[00:21:26] Speaker 04:
And I think what he's saying there is saying, has this been cleared by somebody else above me or someone else?

[00:21:33] Speaker 04:
Because he's saying, I guess you use fair inference to say, as Mr. Cotnick suggests, that it's not a last year.

[00:21:38] Speaker 04:
He didn't know, right?

[00:21:39] Speaker 04:
He didn't know the play was selected at that point in time.

[00:21:44] Speaker 04:
Yeah.

[00:21:44] Speaker 01:
But again, look, he chose to... What if he had only said he was speaking as a dad?

[00:21:50] Speaker 01:
Everything else is the same.

[00:21:52] Speaker 04:
Would you... I mean, certainly that would be a major difference in the facts here.

[00:21:57] Speaker 04:
I still think you'd have to look at all the other factors that we know, which is he chose to send the email

[00:22:05] Speaker 04:
through his work email.

[00:22:06] Speaker 04:
He chose to keep his signature block on there.

[00:22:09] Speaker 04:
And whether you like it or not, a school administrator can't necessarily take off that hat to their subordinates so easily who are all on this email chain.

[00:22:17] Speaker 04:
And so if you really wanted to speak as a dad, is it enough that as you put it, Judge Rodgman, put a disclaimer?

[00:22:24] Speaker 04:
I mean, again, I already address that as a legal matter, but just in terms of practically, why not log off your work email and send an email from your personal email

[00:22:35] Speaker 04:
to that teacher Diaz or to the principal of the school and say, I'm concerned about this.

[00:22:41] Speaker 04:
I'm separate from my work.

[00:22:43] Speaker 04:
He could have done all of that, but he didn't do that.

[00:22:45] Speaker 03:
That's an important factor here.

[00:22:47] Speaker 03:
Assuming he had a private email.

[00:22:49] Speaker 04:
Assuming he did have one?

[00:22:51] Speaker 04:
Yeah.

[00:22:51] Speaker 03:
Well, OK.

[00:22:53] Speaker 03:
I'll give you that.

[00:22:54] Speaker 03:
I mean, I don't have a private email.

[00:22:56] Speaker 03:
So every email that I send comes from my work address.

[00:23:02] Speaker 04:
Sure.

[00:23:03] Speaker 04:
If he wanted to have one, he could have one.

[00:23:05] Speaker 04:
It takes less than a minute or something to set up a Google or whatever.

[00:23:08] Speaker 03:
You're making all of these very fact-specific arguments, construing the allegations in the complaint favorably to the defendant, not the plaintiff.

[00:23:17] Speaker 03:
You're assuming a lot of things.

[00:23:19] Speaker 03:
You're assuming he has a private email, that he could have done that.

[00:23:22] Speaker 03:
You're assuming that these two questions that began addressing Kayla are actually to the principal.

[00:23:30] Speaker 03:
considering all of the allegations of the complaint favorably to the defendant rather than the plaintiff?

[00:23:34] Speaker 04:
Well, I'm just trying to answer the questions here today and think about this as deeply as we can.

[00:23:38] Speaker 04:
But again, I'm not writing the plausibility standard here.

[00:23:41] Speaker 04:
Let's stick with the allegations and the complaint.

[00:23:43] Speaker 04:
Take them as true.

[00:23:45] Speaker 04:
Put them all together.

[00:23:46] Speaker 04:
And we have a situation where someone clearly thinks they are speaking as an employee, and all these

[00:23:56] Speaker 04:
other circumstances about it lead to that conclusion.

[00:23:58] Speaker 04:
I think the district court was right.

[00:24:00] Speaker 04:
And you can review that as a question of law, de novo, and you ought to reach the same conclusion.

[00:24:05] Speaker 04:
And a couple points I want to make as my time's running.

[00:24:09] Speaker 02:
Before you run out of time, there's another claim here that we're reviewing under Title VII for religious discrimination.

[00:24:17] Speaker 02:
How can you defend that claim?

[00:24:20] Speaker 04:
Well, first of all, I think the first question is, does he allege direct evidence of discrimination?

[00:24:27] Speaker 04:
And the only allegation in the complaint that comes anywhere close to that is that the defendant, again, doesn't say who, just says the defendant, which is the institution, cited his emails as the reason for termination.

[00:24:41] Speaker 04:
But that isn't of itself as not direct evidence of religious discrimination.

[00:24:46] Speaker 02:
I really don't have a problem

[00:24:50] Speaker 02:
On the basis of the allegations and the complaint inferring that there is a religious discriminatory motive here, the timing was remarkable, the statements he quotes from people, including the principal after he left.

[00:25:06] Speaker 02:
Are you resting your defense on the inadequacy of the allegation of religious discrimination?

[00:25:14] Speaker 04:
Not entirely, no.

[00:25:15] Speaker 04:
I mean, that's just one point.

[00:25:16] Speaker 04:
I mean, his- What defense do you have?

[00:25:19] Speaker 04:
Well, his theory was disparate treatment, right?

[00:25:23] Speaker 04:
And that was his theory that he presented.

[00:25:25] Speaker 04:
I would just say temporal proximity is argued in the briefs for the first time.

[00:25:28] Speaker 04:
That was not presented below.

[00:25:30] Speaker 04:
So whether you want to choose to entertain that or not, it's up to you.

[00:25:33] Speaker 02:
It wasn't like he's relying on facts outside the complaint to make that argument.

[00:25:41] Speaker 04:
No, I'm just saying the argument was never presented below.

[00:25:44] Speaker 04:
It wasn't briefed in the motion to dismiss.

[00:25:47] Speaker 04:
It's a new argument on appeal, and you ought to consider that.

[00:25:49] Speaker 04:
But in terms of that, his whole theory was other people were implicated in this investigation, and nothing happened to them.

[00:26:02] Speaker 04:
So that's fine.

[00:26:02] Speaker 04:
That disparate treatment is certainly a theory of religious discrimination or other types of discrimination.

[00:26:07] Speaker 04:
But it depends on the protected classification.

[00:26:10] Speaker 04:
And he doesn't have any allegations whatsoever about what religious beliefs those employees had or, and this goes again to the proximate piece, whether that's the theory either, what religious beliefs did the actual decision makers here have?

[00:26:26] Speaker 02:
Why else would they fire him for those emails?

[00:26:29] Speaker 04:
Well, as the district court characterized it in its order, I think quite aptly, that this is unprofessional conduct.

[00:26:41] Speaker 04:
And they do an investigation.

[00:26:42] Speaker 04:
And in the course of an investigation, as alleged, other issues arose.

[00:26:47] Speaker 04:
Issues about COVID compliance, issues about a good old boys club at the school.

[00:26:53] Speaker 04:
And Mr. McNellis, I mean, that's what we have to go on from the complaint.

[00:26:56] Speaker 04:
At the end of it, he's terminated.

[00:26:58] Speaker 02:
So you know, you... This sounds like things that could be explored after discovery and determine whether or not

[00:27:08] Speaker 02:
his claim is valid or not, but at the motion to dismiss stage.

[00:27:15] Speaker 04:
Sure.

[00:27:15] Speaker 04:
I mean, they're very thin allegations, but the point of it being, a defendant shouldn't have to stand for discovery on something that's just conceivable, a conceivable theory of religious discrimination.

[00:27:27] Speaker 04:
It has to be plausible, and that has to mean something here.

[00:27:31] Speaker 04:
He hasn't alleged who the decision makers were.

[00:27:34] Speaker 02:
It just reeks of religious discrimination to me.

[00:27:40] Speaker 02:
That may not be accurate when we get all the facts.

[00:27:46] Speaker 04:
All he had to allege was who the decision maker was, and the decision maker had a religious animus towards

[00:27:54] Speaker 02:
Evangelical Christians.

[00:27:56] Speaker 02:
Doesn't he need discovery to find out exactly how that process worked?

[00:28:00] Speaker 02:
And if people involved in the decision making had a religious animus, then he's got a cat's paw argument.

[00:28:09] Speaker 02:
Even if the ultimate decision was by the board, we don't know if the board was deferential to the principal.

[00:28:16] Speaker 04:
With respect, I think he can allege much more.

[00:28:19] Speaker 04:
He worked there for, what did he say in here?

[00:28:20] Speaker 04:
I may have a year on, but over a decade, 17-some years in the district.

[00:28:24] Speaker 04:
He identified the people who were involved in the investigation part of the process, and then he suddenly doesn't identify who told him he was terminated or even really clearly state what they said the reasons for the termination were.

[00:28:36] Speaker 04:
I mean, this is very careful, artful pleading.

[00:28:41] Speaker 04:
That doesn't state a plausible claim.

[00:28:43] Speaker 04:
And now a school district public entity has to stand for discovery on that.

[00:28:47] Speaker 04:
I don't think that's enough.

[00:28:48] Speaker 04:
And that district court felt so, too.

[00:28:50] Speaker 04:
And that's our point.

[00:28:51] Speaker 04:
OK.

[00:28:51] Speaker 04:
Thank you, counsel.

[00:28:53] Speaker 04:
All right.

[00:28:55] Speaker 04:
We would ask that you affirm the ruling.

[00:28:58] Speaker 04:
Thank you.

[00:29:03] Speaker 02:
You have one more minute, a little over a minute.

[00:29:09] Speaker 00:
OK.

[00:29:10] Speaker 00:
Two fundamental things that the court needs to hone in on here.

[00:29:13] Speaker 00:
First is we're evaluating whether or not the complaint simply makes sufficient allegations to demonstrate that there is a plausible claim for discrimination on the basis of free speech.

[00:29:25] Speaker 02:
One thing we usually require is identifying the person who said something.

[00:29:32] Speaker 02:
Why couldn't you identify the people who admitted the religious motive?

[00:29:39] Speaker 00:
Yeah.

[00:29:39] Speaker 00:
So, I mean, looking back on it, I really wish I had identified the specific individual who told him that they were terminating him because of the emails.

[00:29:48] Speaker 00:
That is not something that was specifically enumerated in the complaint.

[00:29:53] Speaker 00:
But we did arrange that the defendant told him that he was terminated.

[00:29:57] Speaker 02:
Well, the defendant is the school district.

[00:30:02] Speaker 00:
Correct.

[00:30:02] Speaker 02:
The defendant is the school district.

[00:30:04] Speaker 02:
Shouldn't you have alleged who it was who actually said that?

[00:30:10] Speaker 02:
That's a real omission.

[00:30:13] Speaker 00:
Yeah.

[00:30:13] Speaker 00:
I mean, looking back, I definitely should have.

[00:30:15] Speaker 00:
But in terms of assessing the complaint under Rule 12b-6 to assess the adequacy of the complaint to determine whether or not this is an issue that should be permitted upon discovery, I think the allegations are certainly adequate in that regard.

[00:30:31] Speaker 02:
Let me follow up a little bit.

[00:30:35] Speaker 02:
Did the motion to dismiss

[00:30:38] Speaker 02:
recite that you had not alleged who said this?

[00:30:42] Speaker 02:
And if so, why didn't you request an opportunity to amend the complaint to take care of that omission?

[00:30:53] Speaker 00:
Yeah, so I think that's really based on the procedural, the procedure in terms of the timing of the order on the motion to dismiss.

[00:31:02] Speaker 00:
So we filed an initial complaint, the defendants then filed a motion to dismiss and then we filed an amended complaint and then

[00:31:12] Speaker 00:
I think it was maybe seven months later, ballpark, something like that, about a week or two before the close of discovery, the court just ruled on the motion to dismiss.

[00:31:22] Speaker 00:
So at that point, given how far along that we were into the case, given that discovery was mostly completed, and given just honestly the nature of the order, we felt the best process was to just proceed with an appeal.

[00:31:44] Speaker 02:
Thank you.

[00:31:44] Speaker 02:
Time is expired.

[00:31:48] Speaker 02:
Case is submitted.

[00:31:49] Speaker 02:
Council are excused.