Legal Case Summary

I'm here from Mr. Barry Watts when you're ready. May I please the court judge Dennis, Judge King, Judge Clinton? The court's rules say to argue not the facts and not to breathe if you've read those and this has been well-breed. So I'm going to focus on the three points that I think are really of interest. Number one, this case was decided pre-Lane versus Friday. So lane versus Frank is in court. Number two, in the district court's opinion, I think that he substantially deviated from the standard of review. Number three, I think that he delved into sorting out the stuff of motives and he shouldn't have. Now with regard to lane versus Frank, that case has been addressed by this court at least four times that I'm aware of in recent months. In that case, we're taught three things that I think are important. Number one, we're taught that simply because speech is based upon information gained in the workplace doesn't mean that it's unprotected. Number two, we're taught that speech when compelled and an official proceeding in lane at a trial. That it is a matter of general public concern because it deals with the truth, no official proceeding. And the third thing we're taught is that Garcetti meant whether speech of issue is itself ordinarily within the scope of an employee's duties, is the key and not merely whether it concerns those duties, to be determined whether Garcetti applies. In this particular case, the district court's opinion starts off on page seven. And he notes that even if speech is not necessarily required by an employee's job duties, it is not protected if it is sufficiently related to them. He then says later on that same page, whether the speech resulted from special knowledge gained as an employee

. He then says on page nine that regarding an issue on which she had special knowledge, and then he says on page 10, speaking as a part of her public job, and then he goes to page 13. And he notes that they were speaking as hsd employees to hsd retained investigators in connection with an official hsd investigation. All their speech was therefore made pursuant to their official duties. That's the compelled, the compelled speech matter. Now we're talking about these three lawyers. These are three investigators. They happen to be lawyers, but they're not hired. But that's who we're talking about. That's what you're talking about. Well I'm talking about it in the pleadings I set out that the contract they have is not as lawyers. They're specific. While the trial court made a note that they were, quote, retained in their law firm, they were not retained as lawyers. Specifically they were excluded from practicing law and giving legal opinions. Specifically they were hired to replace the investigation unit of the Houston Independent School District. And the reason for that is very simple. Hsd's counsel, they're mostly their outside counsel, didn't want competition

. And so that's what we have here. Three lawyers, actually two lawyers. Dynaparist Gomez and Elizabeth Mottakroger, they were lawyers. And they were not acting as lawyers. Friselle and Mojlott were investigators. Friselle is an XCI agent. Mojlott is his companion. So what we have is people being called in in an official investigation being interviewed. And they had no right to say no. They're terminating if you don't. I mean, Gary already tells us that even police officers have to go in and talk. But they can have a warning or they can sign a particular statement that protects them. So we're talking principally about having to go in and respond and they did. Now, but what becomes the issue here is the compelled response. I think that it's very telling when you look at what is pled, and by the way this is non evidentiary, and I understand that. This is simply deciding whether we get to do any discussion

. But when you look at the pleading, you will see that I set out in that pleading a statement that was made to Herbert Linton, who was terminated with Maywokehl. And the statement was made by Dynaparist Gomez, the investigator who is also a lawyer. And the in Frizel, and I believe in Mojla, and they told him, you're not the focus of this. You're not the target. You're not an issue. You don't get the big picture. And that was repeatedly the statement. You don't get the big picture. Well, that big picture is in and of itself the motive behind all of this. And what was that big picture? The big picture was to get Maywokehl. And make all of these outrageous, vile assertions about this woman, who spent 33 years of her life in HISD, who was a leader in the community, who happened to, by the way, when she went to the church on November 12th. The judge didn't, trial judge, didn't quite understand how she got there. He first said she was invited by State Representative Harold Dutton. He says that twice. He then says, well, she went there because Greer told her to go there. She went there to speak for a group

. That's not true. In the pleading, she wasn't going to go. She was shopping with her granddaughter. She knows Harold Dutton. She had been invited by Harold Dutton to go to the church that night. And the church wasn't to talk about her replacement. The pleading steps out very clearly. The church was to have a meeting, to discuss outrage against Dr. Greer for having lied to the pastor about not terminating Bernadette. He had a meeting with Dr. Greer at Harris as the interim principal of key elementary. In fact, at that very meeting that night, Dr. Greer had three of his high ranking administrators. He had a deputy general counsel who'd tape recording. He had the area superintendent of school, Cynthia Wilson, who took photos of Maple Caleb with Harold Dutton and the parking lot as Dutton made a sign that would be used following day to pick it greer. And he sent also, or had there, the former area superintendent, Thelma Garza

. She didn't go there that night because Greer asked her to go there. She didn't go there that night as a school representative. She went there that night. And as a courtesy to Greer said, he saw he couldn't be here. But then everything else, from the moment she started talking to the crowd, to the time that she left with Harold Dutton and went into the parking lot until she was focused in the camera of Thelma Garza and Cynthia Wilson while looking at a sign that was being put together to pick it greer the following day, she was engaged in matters of general public concern. Now, I think it's very interesting, and I think it may be I would call it a smoking gun. Look at the pleadings and goodness knows, I tried to win them down, believe it or not. But look at, but there are five plaintiffs and there were four defendants. But look at the pleadings and you will see that on the following day, November the 13th, after the 12th church meeting, Greer is picketed by Dutton and Pastor Jones at the school administration building. The pleading state that Greer telephones both men on his cell phone and their cell phone and tells them, please stop, stop the picketing. And they say, we won't do it unless you attend a town hall meeting tomorrow on Saturday. And he said, I'll do it, just stop. And they did. Now, what's the first thing that the pleading state that Greer did? He called Mabel Caleb and told her to get herself up to his office. And then when she gets up there, the next thing the pleading state that he did was he said, I'm going to go to a meeting on the 14th, another town hall meeting. I'm going to show up

. But he made then the classic comment that we've heard several times dating back or a month. How do you speak to these people? How do you talk to these people? Well, she was being linked by Greer with these people who were the people that had picketed him, who were the people she had spoken with and had been seen with and photographed with the night before. Now, in terms of how the judge did not follow the standard of review, this is an evidence is not an issue. Promble even doesn't speak in terms of evidence, talks in terms of fact. The judge talks in terms of evidence. But what we have is the judge saying there's no evidence and then the pleading is over to plead with facts. He says there's no plausible chronology. In order for him to say there's no evidence or no facts, he has to take all of the bulk of facts that have been laid out by me and the pleading and he has to weigh them out and say those are not to be considered. In order for him to say there's not a plausible chronology, he has to take the chronology which I think is a powerful chronology. I put together almost a day by day timeline from public records and he has to say that's not plausible. And when he does that, he's weighing what happened. He draws inferences, inductive inferences. He draws inferences when he doesn't have the right to and every inference he draws is against my clients. Every comment he makes is against my clients. And that's just not the way a 12b6 is supposed to operate. If we had gotten past 12b6, he would have had the opportunity to weigh out the evidence and he could go in there and do that

. But even then, under strictures. The last thing the motive. Why? And I know you've read the brief so I'm not going to belabor the point. But why in the name of heaven would all of this happen to Mabel Caleb, Herbert Clinton, Jackie Anderson who's not here? Patrick Cockerham, Diane Banks. Why would it happen? Because if you look at that timeline, it all started with November the 12th. Everything started. The anonymous phone calls. Let me tell you my opinion in your honors. And I'm going to give you this back. But this, there used to be in some of the law offices that they describe floor plan litigation. Well, this is a floor plan event preparing for litigation just to try to get rid of Mabel Caleb. And when per people, per click, as they're called, wouldn't lie. It suddenly became about them. Remember the pleading say, Jackie Anderson and all that we're told, this is not about you. Get the big picture. And when they didn't lie, it became about them

. Herbert Clinton said, I get the big picture. You made a due process claim saying that these people had not had administrative hearings, but that all had hearings before they were terminated or retained. No, they didn't all have who didn't have a hearing. Mabel Caleb didn't have here. Herbert Lenton. Thanks, Cockerhand and Lenton all had hearings. Herbert Lenton had a hearing that he was supposed to have had a hearing. But what happened is they lied to the pleading. They lied to him and said that his accuser witnessed Glenn White wasn't there. When in fact they were hiding Glenn White out in the room adjacent to the hearing room. And the only reason that Herbert Lenton and his lawyer knew that Glenn White was there, because when they were leaving the school administration building, Glenn White goes by and has picked up truck and says, indicating call me. But he had a hearing. Well, I think the test is meaningful hearing. I don't think that that was quite a meaningful hearing. Well, it's your allegation. It certainly wasn't what I'm in red now

. All right. Thank you. Thank you, sir. I'll try to address that direct criminal. Sure. We'll see what opposing counsel says. Mr. Morris. Our turtle, Michelle, for HISD and Mr. Greer, I thought that was the orders that I would go for HISD and then Mr. Morris. May I please the court if I may, John Hopkins, with my firm, is at the end of the table. And Kevin Rizli on the center end is here for the Appalee investigators, Frisal and Majelot. With regard to HISD and Dr. Greer, there are three of the plaintiffs below, only three appellants that are at issue here before this court. That's Diane Banks, a Patrick Cockerham and Herbert Lenton

. Those are the claims that I will address. Mr. Watts spoke about the freedom of expression claim, the free speech claim. This is a traditional analysis which includes Garcetti as clarified now by Lane. But even with the clarifications and the recent cases, and even if this preceded the Lane decision, the decision below properly applies the law even under the current state. What you have with regard to these three are employees who are questioned by an employer because the employer believe that there was wrongdoing by these employees and also questions with regard to others. When you look at the Lane analysis, it talks about what is ordinarily within the duties of an employee. This squarely fits in it. Lane and the cases that the progeny of Lane stand for the proposition that there is no one determinative factor. Job descriptions are often vague and do not align with job duties. Something may relate to an employment duty, but the context or the circumstances under which a speech occurred may be different. But when you look at this situation where you have an employer who goes to an employee asking about wrongdoing, that is an inherent job duty of every employee because every employer will require of each employee that they respond to questions with regard to wrongdoing and demand that they respond truthfully to those questions. That is what occurred here. When you look at what happened in terms of the discussions and there is a considerable time spent in the third amended complaint detailing the back and forth between the questioning and the employee's response, you see that it goes up the chain of command. It goes through the entire investigative process then into a grievance process and evaluation process. There is a reference with regard to each of these three for a conference for the record that has pled states the conference for the record is the penultimate step to beginning an adverse employment decision or at least the way the plaintiff is characterized with regard to the loss of their employment. You will also see with each of these three that what they spoke about as pled in the complaint deals with circumstances that were within their knowledge as employees. Ms. Banks was a teacher who was accused of cheating on one of the standardized tests by means of introducing an actual live test information and distributing it so that the students would perform better than their own knowledge. Is that allegation proven? That allegation was not proven if you're referring to the disciplinary proceedings. No, the disciplinary proceedings with regard to Mr. Cockerham and Ms. Banks. The hearing officer did not uphold the allegations of the school district. But in both of those instances the employees and as with Mr. Lenton brought forth the knowledge they had about Ms. Banks how she operated with regard to testing material how she felt she was duped by others. Mr. Cockerham and Mr. Lenton were both in the operations end. The allegations in the plea to address at length why they believed that they were operating under proper procedures that they contacted central office administrators that they followed certain procedures or in some instances like Mr. Cockerham as pled that he said he was unaware and had not received training in certain procedures such as the pro-card

. You will also see with each of these three that what they spoke about as pled in the complaint deals with circumstances that were within their knowledge as employees. Ms. Banks was a teacher who was accused of cheating on one of the standardized tests by means of introducing an actual live test information and distributing it so that the students would perform better than their own knowledge. Is that allegation proven? That allegation was not proven if you're referring to the disciplinary proceedings. No, the disciplinary proceedings with regard to Mr. Cockerham and Ms. Banks. The hearing officer did not uphold the allegations of the school district. But in both of those instances the employees and as with Mr. Lenton brought forth the knowledge they had about Ms. Banks how she operated with regard to testing material how she felt she was duped by others. Mr. Cockerham and Mr. Lenton were both in the operations end. The allegations in the plea to address at length why they believed that they were operating under proper procedures that they contacted central office administrators that they followed certain procedures or in some instances like Mr. Cockerham as pled that he said he was unaware and had not received training in certain procedures such as the pro-card. The means to be able to make certain purchases all of these reflect these peculiar circumstances of their own job duties when you take all of this together under lane under current fifth circuit law. This is the quintessential case where someone is speaking or as they're alleging not speaking or refusing to say what they claim their employer wants them to say with regard to their employment duties. I think with these three the pleadings are pretty clear in that regard. These three also bring a freedom of association claim. This claim really falls outside the two recognized areas of intimate relationships and an association for an expressive activity. There simply is nothing in the complaint with regard to what any association other than they were associated with the principal the appellant mable Caleb as trusted employees or the public. Some of them who worked closely with them in particular areas that the employer was looking at. There really are no other allegations with regard to that and there's no precedent in this circuit or frankly any other that would allow a pre-association claim based simply on the fact that they have an employment relationship with another employee. I asked a question about Mr. Watts brought up. He said that these three lawyers here were not hired as lawyers but were hired simply to be investigators. Of course I have to say a lot of lawyers wind up doing a lot of investigation but it's usually the predicate for something else. But what's your take on that? I mean the difficulty that I see one of the difficulties here is that state agencies and public agencies routinely hire outside law firms and the state law authorizes that. I have a problem seeing how these lawyers become state actors here. Now I understand probably one of your other counsels going to address that but what's the I mean the HISD has a stake in the answer to that question. Right

. The means to be able to make certain purchases all of these reflect these peculiar circumstances of their own job duties when you take all of this together under lane under current fifth circuit law. This is the quintessential case where someone is speaking or as they're alleging not speaking or refusing to say what they claim their employer wants them to say with regard to their employment duties. I think with these three the pleadings are pretty clear in that regard. These three also bring a freedom of association claim. This claim really falls outside the two recognized areas of intimate relationships and an association for an expressive activity. There simply is nothing in the complaint with regard to what any association other than they were associated with the principal the appellant mable Caleb as trusted employees or the public. Some of them who worked closely with them in particular areas that the employer was looking at. There really are no other allegations with regard to that and there's no precedent in this circuit or frankly any other that would allow a pre-association claim based simply on the fact that they have an employment relationship with another employee. I asked a question about Mr. Watts brought up. He said that these three lawyers here were not hired as lawyers but were hired simply to be investigators. Of course I have to say a lot of lawyers wind up doing a lot of investigation but it's usually the predicate for something else. But what's your take on that? I mean the difficulty that I see one of the difficulties here is that state agencies and public agencies routinely hire outside law firms and the state law authorizes that. I have a problem seeing how these lawyers become state actors here. Now I understand probably one of your other counsels going to address that but what's the I mean the HISD has a stake in the answer to that question. Right. HISD takes the positions that these are not employees that many there are large school district obviously but many school districts do not have the resources to be able to investigate to keep on an ongoing basis on a role personnel and often turn to outside both lawyers most often lawyers sometimes investigators to be able to investigate claims but they do not consider them to be employees. They are not employees or state actors. They gather information or if they are acting in a legal capacity providing us. What does the record reflect what these people were doing? I don't believe that the record is really the pleadings. I don't believe that the pleadings reflect the capacity in which they were operating with regard to whether they were hired as investigators or whether they were hired as attorneys under an attorney client privilege. I will have to go back now supplement for the court but I don't recall and my belief is that the record does not include that. The final item that I wanted to address was the Liberty Interest claim with regard to these three individuals. Here the court below focused on the element of whether they were given the process that they were due whether they received the hearing and all three received a hearing. Mr. Lenton did not prevail in his hearing and was terminated. Ms. Banks did prevail and as pled and in fact she resigned and took a position with another school district and Mr. Cochran prevailed in his hearing and received employment at HISD. So under the Liberty Interest Analysis they received the process as they were due and there is nothing in the pleadings to indicate otherwise. Thank you. Thank you, sir

. HISD takes the positions that these are not employees that many there are large school district obviously but many school districts do not have the resources to be able to investigate to keep on an ongoing basis on a role personnel and often turn to outside both lawyers most often lawyers sometimes investigators to be able to investigate claims but they do not consider them to be employees. They are not employees or state actors. They gather information or if they are acting in a legal capacity providing us. What does the record reflect what these people were doing? I don't believe that the record is really the pleadings. I don't believe that the pleadings reflect the capacity in which they were operating with regard to whether they were hired as investigators or whether they were hired as attorneys under an attorney client privilege. I will have to go back now supplement for the court but I don't recall and my belief is that the record does not include that. The final item that I wanted to address was the Liberty Interest claim with regard to these three individuals. Here the court below focused on the element of whether they were given the process that they were due whether they received the hearing and all three received a hearing. Mr. Lenton did not prevail in his hearing and was terminated. Ms. Banks did prevail and as pled and in fact she resigned and took a position with another school district and Mr. Cochran prevailed in his hearing and received employment at HISD. So under the Liberty Interest Analysis they received the process as they were due and there is nothing in the pleadings to indicate otherwise. Thank you. Thank you, sir. Next, Mr. Morris. May it please the court. The other is this case from my perspective and certainly as it relates to my client, Ms. Elizabeth Mountcrowger is a very simple case. I'm going to try to cut through what I think are some readily resolved arguments to get to some issues that the court has had question about like the state action issue. First though I'd like to address the issue whether there was a Liberty Interest claim and to directly answer Judge Clement's question and yes the complaint filed by the plaintiffs reveals that Mr. Lenton did participate in what was described as HISD's flimsy. The flimsy policies, the grievance process but he had the opportunity to speak nonetheless and we know based on the jurisprudence of this court and the Supreme Court all that needs to be afforded to the employee is the right to state their case not to summon witnesses. So while you heard some response from opposing counsel complaining about whether a witness was available or not for that grievance hearing, it's really immaterial under the standard as to whether each of these individuals had been afforded a name clearing hearing. So I think that the case is not a case of the court and they all did potentially with the exception of Ms. Caleb but that claim which is not advanced against my clients or the clients of Mr. Ridley here, Mr. Marslaught and for Zell, that claim is solely advanced against HISD and that's not here before you that's still pending in the district court. The second issue on the issue of freedom of association, I think that's the one that's most readily resolved because the associations that are implicated in the plaintiffs complaint solely relate to professional relationships as colleagues that Ms. Caleb complains that she had along with Mr

. Next, Mr. Morris. May it please the court. The other is this case from my perspective and certainly as it relates to my client, Ms. Elizabeth Mountcrowger is a very simple case. I'm going to try to cut through what I think are some readily resolved arguments to get to some issues that the court has had question about like the state action issue. First though I'd like to address the issue whether there was a Liberty Interest claim and to directly answer Judge Clement's question and yes the complaint filed by the plaintiffs reveals that Mr. Lenton did participate in what was described as HISD's flimsy. The flimsy policies, the grievance process but he had the opportunity to speak nonetheless and we know based on the jurisprudence of this court and the Supreme Court all that needs to be afforded to the employee is the right to state their case not to summon witnesses. So while you heard some response from opposing counsel complaining about whether a witness was available or not for that grievance hearing, it's really immaterial under the standard as to whether each of these individuals had been afforded a name clearing hearing. So I think that the case is not a case of the court and they all did potentially with the exception of Ms. Caleb but that claim which is not advanced against my clients or the clients of Mr. Ridley here, Mr. Marslaught and for Zell, that claim is solely advanced against HISD and that's not here before you that's still pending in the district court. The second issue on the issue of freedom of association, I think that's the one that's most readily resolved because the associations that are implicated in the plaintiffs complaint solely relate to professional relationships as colleagues that Ms. Caleb complains that she had along with Mr. Lenton, Mr. Banks and Mr. Cockersham. Well, those types of professional relationships just do not have constitutional protection. They're not the type of intimate professional relationships at the Supreme Court and this court have recognized her deserving of constitutional protection. So with those thoughts in mind and unless the court has any questions, I'd like to turn to the free speech claims. I know you've heard some of this but I simply want to drive home the point that I think was able to establish by my opposing counsel when he referenced Guarantee. But employees in the context of their employment have an obligation, whether it's spelled out in their job description or not, to participate with an internal investigation of wrongdoing, which is what we had here. Cockersham, Lenton, Banks were all the subjects of an internal investigation as to whether they had engaged in wrongdoing. Their refusal to participate in that investigation, law tells us would have been tantamount to insubordination and would have required their discharge. So by necessity, when they're participating in a process where the master of that master servant relationship is trying to determine whether there's been some wrongdoing like theft, they are inherently speaking in their role as employees. And I think Lane makes the distinction appropriately as does this court's authority in Bowie, excuse me, Williams versus Dallas, is the first you need to look in the role in which they speak. And even in Garcetti says that if a public employee speaks pursuant to employment responsibilities, there is no relevant analog to speech by citizens who are not government employees. And that's what you had here, at least with respect to Lenton, Banks, Cockersham. They were speaking in their role as employees and there was no relevant analog. The simple criticism of them is that they wouldn't play ball in a testified way that might have been hurtful to May, OK, Lov, that doesn't make a first-minute retaliation claim

. Lenton, Mr. Banks and Mr. Cockersham. Well, those types of professional relationships just do not have constitutional protection. They're not the type of intimate professional relationships at the Supreme Court and this court have recognized her deserving of constitutional protection. So with those thoughts in mind and unless the court has any questions, I'd like to turn to the free speech claims. I know you've heard some of this but I simply want to drive home the point that I think was able to establish by my opposing counsel when he referenced Guarantee. But employees in the context of their employment have an obligation, whether it's spelled out in their job description or not, to participate with an internal investigation of wrongdoing, which is what we had here. Cockersham, Lenton, Banks were all the subjects of an internal investigation as to whether they had engaged in wrongdoing. Their refusal to participate in that investigation, law tells us would have been tantamount to insubordination and would have required their discharge. So by necessity, when they're participating in a process where the master of that master servant relationship is trying to determine whether there's been some wrongdoing like theft, they are inherently speaking in their role as employees. And I think Lane makes the distinction appropriately as does this court's authority in Bowie, excuse me, Williams versus Dallas, is the first you need to look in the role in which they speak. And even in Garcetti says that if a public employee speaks pursuant to employment responsibilities, there is no relevant analog to speech by citizens who are not government employees. And that's what you had here, at least with respect to Lenton, Banks, Cockersham. They were speaking in their role as employees and there was no relevant analog. The simple criticism of them is that they wouldn't play ball in a testified way that might have been hurtful to May, OK, Lov, that doesn't make a first-minute retaliation claim. What was the outcome of the theft allegation of the furniture and the property that was moved from one school to the other? Your Honor, what was it being stolen? My recollection is that I don't know that there's one clear answer overall because there were numerous hearings that were held with respect to certain employees but as plaintiffs alleged they're complaint with respect to Anderson, I believe, and Cockersham and Banks, they were exonerated of these charges. And clearly there's nothing factually alleged in this complaint that would survive the stigma plus test that they were incapable of fighting other employment. One is still an employee of the district, Banks resigned and soon found employment after and again. That's not anything that I'm bringing to you as a lawyer who knows some of the background facts. I'm taking those again straight out of the complaint as we must. I'm not deviating from the complaint when I tell you that. Now, critically important for me is that you understand that while Miss Caleb's First Amendment retaliation allegations are not before you as they relate to HISD and Dr. Greer, they are before you as they relate to my clients as well as Mr. Majelot and Mr. Fresel because though all claims were dismissed against the investigative team. But critically important when you review this 111 page complaint. What is notable in its absence is any allegation that Miss Kroger acted or Mr. Majelot or Mr. Fresel for that matter acted in response to any knowledge they held or in response to any speech that Mabel Caleb engaged in. In fact, you will see many motivations ascribed to Miss Kroger in the complaint. Some that she was just trying to please Dr

. What was the outcome of the theft allegation of the furniture and the property that was moved from one school to the other? Your Honor, what was it being stolen? My recollection is that I don't know that there's one clear answer overall because there were numerous hearings that were held with respect to certain employees but as plaintiffs alleged they're complaint with respect to Anderson, I believe, and Cockersham and Banks, they were exonerated of these charges. And clearly there's nothing factually alleged in this complaint that would survive the stigma plus test that they were incapable of fighting other employment. One is still an employee of the district, Banks resigned and soon found employment after and again. That's not anything that I'm bringing to you as a lawyer who knows some of the background facts. I'm taking those again straight out of the complaint as we must. I'm not deviating from the complaint when I tell you that. Now, critically important for me is that you understand that while Miss Caleb's First Amendment retaliation allegations are not before you as they relate to HISD and Dr. Greer, they are before you as they relate to my clients as well as Mr. Majelot and Mr. Fresel because though all claims were dismissed against the investigative team. But critically important when you review this 111 page complaint. What is notable in its absence is any allegation that Miss Kroger acted or Mr. Majelot or Mr. Fresel for that matter acted in response to any knowledge they held or in response to any speech that Mabel Caleb engaged in. In fact, you will see many motivations ascribed to Miss Kroger in the complaint. Some that she was just trying to please Dr. Greer, some that they wanted the money and prestige that came from the investigation. But none of the allegations support that she had taken any action in the conduct of the investigation or that Majelot or Fresel had taken the action in the investigation. In retaliation for any prior speech that Miss Caleb had engaged in. Now the district court found that certain of those allegations against Miss Caleb brought by Miss Caleb wouldn't even stand reasonable inference or the plausibility test under Iqbal because of the lack of temporal proximity. But I'm here to say we don't even get that far with respect to the investigative team. There's simply no allegation that they took any action in response to any prior speech exercised by Miss Caleb. And I'm running out of time but I really want to address this state action issue because if I have one problem with the district court opinion, it's with the state action issue. I think that the court solely based on the allegation that the HIST office of professional standards and office which many districts don't have. Sometimes conducts employment investigations that from that you can extrapolate as a matter of theory and law that somehow these lawyers outside independent investigators who were hired for their independence from the government entity and not acting under color of law. That somehow they were taking on an exclusively traditional public function of the government. Your honor we know by the jurisprudence of this court and the Supreme Court that test is reserved for very narrow circumstances like operations of prisons that have historically always been within the realm of the government's operations. But when governmental entities of all stripes and particularly municipalities that don't have the resources to have inside investigative teams use lawyers. They do so with the understanding that they are not speaking as agents of the entity but they are independent and for that reason they cannot be state actors. I see that I am out of time I simply request that the panel affirm the district court's decision with respect to our clients. First of all in answer to your question judge where they lawyers or where they not what did the pleadings say I had hoped that the trial judge would read the pleadings and I had hoped the counsel would read the pleadings. When you asked that question you didn't get a good answer

. Greer, some that they wanted the money and prestige that came from the investigation. But none of the allegations support that she had taken any action in the conduct of the investigation or that Majelot or Fresel had taken the action in the investigation. In retaliation for any prior speech that Miss Caleb had engaged in. Now the district court found that certain of those allegations against Miss Caleb brought by Miss Caleb wouldn't even stand reasonable inference or the plausibility test under Iqbal because of the lack of temporal proximity. But I'm here to say we don't even get that far with respect to the investigative team. There's simply no allegation that they took any action in response to any prior speech exercised by Miss Caleb. And I'm running out of time but I really want to address this state action issue because if I have one problem with the district court opinion, it's with the state action issue. I think that the court solely based on the allegation that the HIST office of professional standards and office which many districts don't have. Sometimes conducts employment investigations that from that you can extrapolate as a matter of theory and law that somehow these lawyers outside independent investigators who were hired for their independence from the government entity and not acting under color of law. That somehow they were taking on an exclusively traditional public function of the government. Your honor we know by the jurisprudence of this court and the Supreme Court that test is reserved for very narrow circumstances like operations of prisons that have historically always been within the realm of the government's operations. But when governmental entities of all stripes and particularly municipalities that don't have the resources to have inside investigative teams use lawyers. They do so with the understanding that they are not speaking as agents of the entity but they are independent and for that reason they cannot be state actors. I see that I am out of time I simply request that the panel affirm the district court's decision with respect to our clients. First of all in answer to your question judge where they lawyers or where they not what did the pleadings say I had hoped that the trial judge would read the pleadings and I had hoped the counsel would read the pleadings. When you asked that question you didn't get a good answer. In the pleadings it stated how the contract between Elizabeth Mottakroger and Jackson Wisdom and her firm specified what they could do or what they couldn't do. In the pleadings it stated what the report that Elizabeth Mottakroger constructed stated on the face of it. If you look at the brief page 11 footnote 6 I cite the record on the field and I say and I quote her report it says this report is prepared by MDJW for fact finding purposes and is not intended to be legal advice. And then in bold thought it's confidential not for public disclosure original 407 Houston Independent School District confidential investigative report here and after confidential report and at the bottom of each page it's copyrighted. Secondly the question comes up well what about Ms. Banks she just resigned and what somewhere else. Do you know that even today when you go on the internet you can find this report of Elizabeth Mottakroger. Even today it's still out there floating out there saying the ball things that it said in 2010 today. Diane Banks sure after she won and by the way when council Mr. Michelle prosecuted her for the district he got in there and much to his credit. He said the real issue is whether or not she cooperated or didn't cooperate with regards to add a bio. That's laid out in the pleading that's laid out the police and when Banks won she did resign she resigned and went to another district because she didn't trust him anymore when she got to the other district she was laid off that district is represented but the same outside firm the representative HSD I don't know. But the only place that she could go because she was being astigmatized her virtual certificate was being labeled under investigation the only place she could go work was the place that had put the stigma owner HSD indentured servitude I think it is but that's the only place she could go Patrick Cockerham he didn't work for a year. In terms of the in terms of the the oh yes speech I want to talk to you just for a minute about speech the judges right he says there are there are five things of speech five elements of speech that Caleb outlines number one that the 2005 speech but he says that's two remote. But excuse me Caleb didn't interject that into the play she didn't interject that into the game Mata Kroger on her own breath that up in her report the 2007 speech when Bable Caleb goes to the public and she's answering questions about whether or not there is indeed toxic mole poisoning her faculty and her kids and the school district says monkey see monkey do that's not believable. And then CDC comes in and say wait a minute you've got toxic mole and HSD has has mud all over their face

. In the pleadings it stated how the contract between Elizabeth Mottakroger and Jackson Wisdom and her firm specified what they could do or what they couldn't do. In the pleadings it stated what the report that Elizabeth Mottakroger constructed stated on the face of it. If you look at the brief page 11 footnote 6 I cite the record on the field and I say and I quote her report it says this report is prepared by MDJW for fact finding purposes and is not intended to be legal advice. And then in bold thought it's confidential not for public disclosure original 407 Houston Independent School District confidential investigative report here and after confidential report and at the bottom of each page it's copyrighted. Secondly the question comes up well what about Ms. Banks she just resigned and what somewhere else. Do you know that even today when you go on the internet you can find this report of Elizabeth Mottakroger. Even today it's still out there floating out there saying the ball things that it said in 2010 today. Diane Banks sure after she won and by the way when council Mr. Michelle prosecuted her for the district he got in there and much to his credit. He said the real issue is whether or not she cooperated or didn't cooperate with regards to add a bio. That's laid out in the pleading that's laid out the police and when Banks won she did resign she resigned and went to another district because she didn't trust him anymore when she got to the other district she was laid off that district is represented but the same outside firm the representative HSD I don't know. But the only place that she could go because she was being astigmatized her virtual certificate was being labeled under investigation the only place she could go work was the place that had put the stigma owner HSD indentured servitude I think it is but that's the only place she could go Patrick Cockerham he didn't work for a year. In terms of the in terms of the the oh yes speech I want to talk to you just for a minute about speech the judges right he says there are there are five things of speech five elements of speech that Caleb outlines number one that the 2005 speech but he says that's two remote. But excuse me Caleb didn't interject that into the play she didn't interject that into the game Mata Kroger on her own breath that up in her report the 2007 speech when Bable Caleb goes to the public and she's answering questions about whether or not there is indeed toxic mole poisoning her faculty and her kids and the school district says monkey see monkey do that's not believable. And then CDC comes in and say wait a minute you've got toxic mole and HSD has has mud all over their face. And she became the figure that's the paper said yes my kids are getting sick my faculty is getting sick and what about what about that how did that get into the case Mabel Caleb's 2007 2007 episode on the mold interjected by Mata Kroger Mabel Caleb didn't bring it up it would only be remote if Mabel Caleb said I did this back then and this is the effect now. Then you'd have to look and say well what is the temporal proximity isn't that remoteness but that's not what happened what happened is Mabel Caleb's 2005 and 2007 activities were brought together put together by Mata Kroger Mabel Caleb never never asserted that. And then the third element of speech November 12th the judge started passes that off he says what she was invited to talk about who was going to replace her I've already covered that parking lots picket signs and Terry Greer was called a liar a liar publicly but more importantly in the pleadings Mabel Mata Kroger tells you that Mabel Caleb was not there to support the HSD. Now you say well okay but how do we know about the furniture you know what all HSD ever did about the furniture was they say well we had a policy all the furniture went to cashmere that was her furniture mode the computers went to cashmere that's okay. And there were PC to forms filled out it was done appropriately and the district all it did was create a reason to conduct a post November 12th reason to conduct an investigation to get to get to my client. You know about this compel speech business let me tell you here's where I see that I live on a farm you can make a horse come to the to the water draw but you can't make them dream and that's exactly they have an obligation they have an obligation is employees to get involved in participate every single client participated in the investigation conducted by Mata Kroger you say well but council says she didn't have any evidence. The record is silent about what she did or why she was doing it that's not true. Mr. Watts I'm sorry you cheated your time thank you. Please look at that please. Before I begin to join until 1 p.m. Wednesday.

I'm here from Mr. Barry Watts when you're ready. May I please the court judge Dennis, Judge King, Judge Clinton? The court's rules say to argue not the facts and not to breathe if you've read those and this has been well-breed. So I'm going to focus on the three points that I think are really of interest. Number one, this case was decided pre-Lane versus Friday. So lane versus Frank is in court. Number two, in the district court's opinion, I think that he substantially deviated from the standard of review. Number three, I think that he delved into sorting out the stuff of motives and he shouldn't have. Now with regard to lane versus Frank, that case has been addressed by this court at least four times that I'm aware of in recent months. In that case, we're taught three things that I think are important. Number one, we're taught that simply because speech is based upon information gained in the workplace doesn't mean that it's unprotected. Number two, we're taught that speech when compelled and an official proceeding in lane at a trial. That it is a matter of general public concern because it deals with the truth, no official proceeding. And the third thing we're taught is that Garcetti meant whether speech of issue is itself ordinarily within the scope of an employee's duties, is the key and not merely whether it concerns those duties, to be determined whether Garcetti applies. In this particular case, the district court's opinion starts off on page seven. And he notes that even if speech is not necessarily required by an employee's job duties, it is not protected if it is sufficiently related to them. He then says later on that same page, whether the speech resulted from special knowledge gained as an employee. He then says on page nine that regarding an issue on which she had special knowledge, and then he says on page 10, speaking as a part of her public job, and then he goes to page 13. And he notes that they were speaking as hsd employees to hsd retained investigators in connection with an official hsd investigation. All their speech was therefore made pursuant to their official duties. That's the compelled, the compelled speech matter. Now we're talking about these three lawyers. These are three investigators. They happen to be lawyers, but they're not hired. But that's who we're talking about. That's what you're talking about. Well I'm talking about it in the pleadings I set out that the contract they have is not as lawyers. They're specific. While the trial court made a note that they were, quote, retained in their law firm, they were not retained as lawyers. Specifically they were excluded from practicing law and giving legal opinions. Specifically they were hired to replace the investigation unit of the Houston Independent School District. And the reason for that is very simple. Hsd's counsel, they're mostly their outside counsel, didn't want competition. And so that's what we have here. Three lawyers, actually two lawyers. Dynaparist Gomez and Elizabeth Mottakroger, they were lawyers. And they were not acting as lawyers. Friselle and Mojlott were investigators. Friselle is an XCI agent. Mojlott is his companion. So what we have is people being called in in an official investigation being interviewed. And they had no right to say no. They're terminating if you don't. I mean, Gary already tells us that even police officers have to go in and talk. But they can have a warning or they can sign a particular statement that protects them. So we're talking principally about having to go in and respond and they did. Now, but what becomes the issue here is the compelled response. I think that it's very telling when you look at what is pled, and by the way this is non evidentiary, and I understand that. This is simply deciding whether we get to do any discussion. But when you look at the pleading, you will see that I set out in that pleading a statement that was made to Herbert Linton, who was terminated with Maywokehl. And the statement was made by Dynaparist Gomez, the investigator who is also a lawyer. And the in Frizel, and I believe in Mojla, and they told him, you're not the focus of this. You're not the target. You're not an issue. You don't get the big picture. And that was repeatedly the statement. You don't get the big picture. Well, that big picture is in and of itself the motive behind all of this. And what was that big picture? The big picture was to get Maywokehl. And make all of these outrageous, vile assertions about this woman, who spent 33 years of her life in HISD, who was a leader in the community, who happened to, by the way, when she went to the church on November 12th. The judge didn't, trial judge, didn't quite understand how she got there. He first said she was invited by State Representative Harold Dutton. He says that twice. He then says, well, she went there because Greer told her to go there. She went there to speak for a group. That's not true. In the pleading, she wasn't going to go. She was shopping with her granddaughter. She knows Harold Dutton. She had been invited by Harold Dutton to go to the church that night. And the church wasn't to talk about her replacement. The pleading steps out very clearly. The church was to have a meeting, to discuss outrage against Dr. Greer for having lied to the pastor about not terminating Bernadette. He had a meeting with Dr. Greer at Harris as the interim principal of key elementary. In fact, at that very meeting that night, Dr. Greer had three of his high ranking administrators. He had a deputy general counsel who'd tape recording. He had the area superintendent of school, Cynthia Wilson, who took photos of Maple Caleb with Harold Dutton and the parking lot as Dutton made a sign that would be used following day to pick it greer. And he sent also, or had there, the former area superintendent, Thelma Garza. She didn't go there that night because Greer asked her to go there. She didn't go there that night as a school representative. She went there that night. And as a courtesy to Greer said, he saw he couldn't be here. But then everything else, from the moment she started talking to the crowd, to the time that she left with Harold Dutton and went into the parking lot until she was focused in the camera of Thelma Garza and Cynthia Wilson while looking at a sign that was being put together to pick it greer the following day, she was engaged in matters of general public concern. Now, I think it's very interesting, and I think it may be I would call it a smoking gun. Look at the pleadings and goodness knows, I tried to win them down, believe it or not. But look at, but there are five plaintiffs and there were four defendants. But look at the pleadings and you will see that on the following day, November the 13th, after the 12th church meeting, Greer is picketed by Dutton and Pastor Jones at the school administration building. The pleading state that Greer telephones both men on his cell phone and their cell phone and tells them, please stop, stop the picketing. And they say, we won't do it unless you attend a town hall meeting tomorrow on Saturday. And he said, I'll do it, just stop. And they did. Now, what's the first thing that the pleading state that Greer did? He called Mabel Caleb and told her to get herself up to his office. And then when she gets up there, the next thing the pleading state that he did was he said, I'm going to go to a meeting on the 14th, another town hall meeting. I'm going to show up. But he made then the classic comment that we've heard several times dating back or a month. How do you speak to these people? How do you talk to these people? Well, she was being linked by Greer with these people who were the people that had picketed him, who were the people she had spoken with and had been seen with and photographed with the night before. Now, in terms of how the judge did not follow the standard of review, this is an evidence is not an issue. Promble even doesn't speak in terms of evidence, talks in terms of fact. The judge talks in terms of evidence. But what we have is the judge saying there's no evidence and then the pleading is over to plead with facts. He says there's no plausible chronology. In order for him to say there's no evidence or no facts, he has to take all of the bulk of facts that have been laid out by me and the pleading and he has to weigh them out and say those are not to be considered. In order for him to say there's not a plausible chronology, he has to take the chronology which I think is a powerful chronology. I put together almost a day by day timeline from public records and he has to say that's not plausible. And when he does that, he's weighing what happened. He draws inferences, inductive inferences. He draws inferences when he doesn't have the right to and every inference he draws is against my clients. Every comment he makes is against my clients. And that's just not the way a 12b6 is supposed to operate. If we had gotten past 12b6, he would have had the opportunity to weigh out the evidence and he could go in there and do that. But even then, under strictures. The last thing the motive. Why? And I know you've read the brief so I'm not going to belabor the point. But why in the name of heaven would all of this happen to Mabel Caleb, Herbert Clinton, Jackie Anderson who's not here? Patrick Cockerham, Diane Banks. Why would it happen? Because if you look at that timeline, it all started with November the 12th. Everything started. The anonymous phone calls. Let me tell you my opinion in your honors. And I'm going to give you this back. But this, there used to be in some of the law offices that they describe floor plan litigation. Well, this is a floor plan event preparing for litigation just to try to get rid of Mabel Caleb. And when per people, per click, as they're called, wouldn't lie. It suddenly became about them. Remember the pleading say, Jackie Anderson and all that we're told, this is not about you. Get the big picture. And when they didn't lie, it became about them. Herbert Clinton said, I get the big picture. You made a due process claim saying that these people had not had administrative hearings, but that all had hearings before they were terminated or retained. No, they didn't all have who didn't have a hearing. Mabel Caleb didn't have here. Herbert Lenton. Thanks, Cockerhand and Lenton all had hearings. Herbert Lenton had a hearing that he was supposed to have had a hearing. But what happened is they lied to the pleading. They lied to him and said that his accuser witnessed Glenn White wasn't there. When in fact they were hiding Glenn White out in the room adjacent to the hearing room. And the only reason that Herbert Lenton and his lawyer knew that Glenn White was there, because when they were leaving the school administration building, Glenn White goes by and has picked up truck and says, indicating call me. But he had a hearing. Well, I think the test is meaningful hearing. I don't think that that was quite a meaningful hearing. Well, it's your allegation. It certainly wasn't what I'm in red now. All right. Thank you. Thank you, sir. I'll try to address that direct criminal. Sure. We'll see what opposing counsel says. Mr. Morris. Our turtle, Michelle, for HISD and Mr. Greer, I thought that was the orders that I would go for HISD and then Mr. Morris. May I please the court if I may, John Hopkins, with my firm, is at the end of the table. And Kevin Rizli on the center end is here for the Appalee investigators, Frisal and Majelot. With regard to HISD and Dr. Greer, there are three of the plaintiffs below, only three appellants that are at issue here before this court. That's Diane Banks, a Patrick Cockerham and Herbert Lenton. Those are the claims that I will address. Mr. Watts spoke about the freedom of expression claim, the free speech claim. This is a traditional analysis which includes Garcetti as clarified now by Lane. But even with the clarifications and the recent cases, and even if this preceded the Lane decision, the decision below properly applies the law even under the current state. What you have with regard to these three are employees who are questioned by an employer because the employer believe that there was wrongdoing by these employees and also questions with regard to others. When you look at the Lane analysis, it talks about what is ordinarily within the duties of an employee. This squarely fits in it. Lane and the cases that the progeny of Lane stand for the proposition that there is no one determinative factor. Job descriptions are often vague and do not align with job duties. Something may relate to an employment duty, but the context or the circumstances under which a speech occurred may be different. But when you look at this situation where you have an employer who goes to an employee asking about wrongdoing, that is an inherent job duty of every employee because every employer will require of each employee that they respond to questions with regard to wrongdoing and demand that they respond truthfully to those questions. That is what occurred here. When you look at what happened in terms of the discussions and there is a considerable time spent in the third amended complaint detailing the back and forth between the questioning and the employee's response, you see that it goes up the chain of command. It goes through the entire investigative process then into a grievance process and evaluation process. There is a reference with regard to each of these three for a conference for the record that has pled states the conference for the record is the penultimate step to beginning an adverse employment decision or at least the way the plaintiff is characterized with regard to the loss of their employment. You will also see with each of these three that what they spoke about as pled in the complaint deals with circumstances that were within their knowledge as employees. Ms. Banks was a teacher who was accused of cheating on one of the standardized tests by means of introducing an actual live test information and distributing it so that the students would perform better than their own knowledge. Is that allegation proven? That allegation was not proven if you're referring to the disciplinary proceedings. No, the disciplinary proceedings with regard to Mr. Cockerham and Ms. Banks. The hearing officer did not uphold the allegations of the school district. But in both of those instances the employees and as with Mr. Lenton brought forth the knowledge they had about Ms. Banks how she operated with regard to testing material how she felt she was duped by others. Mr. Cockerham and Mr. Lenton were both in the operations end. The allegations in the plea to address at length why they believed that they were operating under proper procedures that they contacted central office administrators that they followed certain procedures or in some instances like Mr. Cockerham as pled that he said he was unaware and had not received training in certain procedures such as the pro-card. The means to be able to make certain purchases all of these reflect these peculiar circumstances of their own job duties when you take all of this together under lane under current fifth circuit law. This is the quintessential case where someone is speaking or as they're alleging not speaking or refusing to say what they claim their employer wants them to say with regard to their employment duties. I think with these three the pleadings are pretty clear in that regard. These three also bring a freedom of association claim. This claim really falls outside the two recognized areas of intimate relationships and an association for an expressive activity. There simply is nothing in the complaint with regard to what any association other than they were associated with the principal the appellant mable Caleb as trusted employees or the public. Some of them who worked closely with them in particular areas that the employer was looking at. There really are no other allegations with regard to that and there's no precedent in this circuit or frankly any other that would allow a pre-association claim based simply on the fact that they have an employment relationship with another employee. I asked a question about Mr. Watts brought up. He said that these three lawyers here were not hired as lawyers but were hired simply to be investigators. Of course I have to say a lot of lawyers wind up doing a lot of investigation but it's usually the predicate for something else. But what's your take on that? I mean the difficulty that I see one of the difficulties here is that state agencies and public agencies routinely hire outside law firms and the state law authorizes that. I have a problem seeing how these lawyers become state actors here. Now I understand probably one of your other counsels going to address that but what's the I mean the HISD has a stake in the answer to that question. Right. HISD takes the positions that these are not employees that many there are large school district obviously but many school districts do not have the resources to be able to investigate to keep on an ongoing basis on a role personnel and often turn to outside both lawyers most often lawyers sometimes investigators to be able to investigate claims but they do not consider them to be employees. They are not employees or state actors. They gather information or if they are acting in a legal capacity providing us. What does the record reflect what these people were doing? I don't believe that the record is really the pleadings. I don't believe that the pleadings reflect the capacity in which they were operating with regard to whether they were hired as investigators or whether they were hired as attorneys under an attorney client privilege. I will have to go back now supplement for the court but I don't recall and my belief is that the record does not include that. The final item that I wanted to address was the Liberty Interest claim with regard to these three individuals. Here the court below focused on the element of whether they were given the process that they were due whether they received the hearing and all three received a hearing. Mr. Lenton did not prevail in his hearing and was terminated. Ms. Banks did prevail and as pled and in fact she resigned and took a position with another school district and Mr. Cochran prevailed in his hearing and received employment at HISD. So under the Liberty Interest Analysis they received the process as they were due and there is nothing in the pleadings to indicate otherwise. Thank you. Thank you, sir. Next, Mr. Morris. May it please the court. The other is this case from my perspective and certainly as it relates to my client, Ms. Elizabeth Mountcrowger is a very simple case. I'm going to try to cut through what I think are some readily resolved arguments to get to some issues that the court has had question about like the state action issue. First though I'd like to address the issue whether there was a Liberty Interest claim and to directly answer Judge Clement's question and yes the complaint filed by the plaintiffs reveals that Mr. Lenton did participate in what was described as HISD's flimsy. The flimsy policies, the grievance process but he had the opportunity to speak nonetheless and we know based on the jurisprudence of this court and the Supreme Court all that needs to be afforded to the employee is the right to state their case not to summon witnesses. So while you heard some response from opposing counsel complaining about whether a witness was available or not for that grievance hearing, it's really immaterial under the standard as to whether each of these individuals had been afforded a name clearing hearing. So I think that the case is not a case of the court and they all did potentially with the exception of Ms. Caleb but that claim which is not advanced against my clients or the clients of Mr. Ridley here, Mr. Marslaught and for Zell, that claim is solely advanced against HISD and that's not here before you that's still pending in the district court. The second issue on the issue of freedom of association, I think that's the one that's most readily resolved because the associations that are implicated in the plaintiffs complaint solely relate to professional relationships as colleagues that Ms. Caleb complains that she had along with Mr. Lenton, Mr. Banks and Mr. Cockersham. Well, those types of professional relationships just do not have constitutional protection. They're not the type of intimate professional relationships at the Supreme Court and this court have recognized her deserving of constitutional protection. So with those thoughts in mind and unless the court has any questions, I'd like to turn to the free speech claims. I know you've heard some of this but I simply want to drive home the point that I think was able to establish by my opposing counsel when he referenced Guarantee. But employees in the context of their employment have an obligation, whether it's spelled out in their job description or not, to participate with an internal investigation of wrongdoing, which is what we had here. Cockersham, Lenton, Banks were all the subjects of an internal investigation as to whether they had engaged in wrongdoing. Their refusal to participate in that investigation, law tells us would have been tantamount to insubordination and would have required their discharge. So by necessity, when they're participating in a process where the master of that master servant relationship is trying to determine whether there's been some wrongdoing like theft, they are inherently speaking in their role as employees. And I think Lane makes the distinction appropriately as does this court's authority in Bowie, excuse me, Williams versus Dallas, is the first you need to look in the role in which they speak. And even in Garcetti says that if a public employee speaks pursuant to employment responsibilities, there is no relevant analog to speech by citizens who are not government employees. And that's what you had here, at least with respect to Lenton, Banks, Cockersham. They were speaking in their role as employees and there was no relevant analog. The simple criticism of them is that they wouldn't play ball in a testified way that might have been hurtful to May, OK, Lov, that doesn't make a first-minute retaliation claim. What was the outcome of the theft allegation of the furniture and the property that was moved from one school to the other? Your Honor, what was it being stolen? My recollection is that I don't know that there's one clear answer overall because there were numerous hearings that were held with respect to certain employees but as plaintiffs alleged they're complaint with respect to Anderson, I believe, and Cockersham and Banks, they were exonerated of these charges. And clearly there's nothing factually alleged in this complaint that would survive the stigma plus test that they were incapable of fighting other employment. One is still an employee of the district, Banks resigned and soon found employment after and again. That's not anything that I'm bringing to you as a lawyer who knows some of the background facts. I'm taking those again straight out of the complaint as we must. I'm not deviating from the complaint when I tell you that. Now, critically important for me is that you understand that while Miss Caleb's First Amendment retaliation allegations are not before you as they relate to HISD and Dr. Greer, they are before you as they relate to my clients as well as Mr. Majelot and Mr. Fresel because though all claims were dismissed against the investigative team. But critically important when you review this 111 page complaint. What is notable in its absence is any allegation that Miss Kroger acted or Mr. Majelot or Mr. Fresel for that matter acted in response to any knowledge they held or in response to any speech that Mabel Caleb engaged in. In fact, you will see many motivations ascribed to Miss Kroger in the complaint. Some that she was just trying to please Dr. Greer, some that they wanted the money and prestige that came from the investigation. But none of the allegations support that she had taken any action in the conduct of the investigation or that Majelot or Fresel had taken the action in the investigation. In retaliation for any prior speech that Miss Caleb had engaged in. Now the district court found that certain of those allegations against Miss Caleb brought by Miss Caleb wouldn't even stand reasonable inference or the plausibility test under Iqbal because of the lack of temporal proximity. But I'm here to say we don't even get that far with respect to the investigative team. There's simply no allegation that they took any action in response to any prior speech exercised by Miss Caleb. And I'm running out of time but I really want to address this state action issue because if I have one problem with the district court opinion, it's with the state action issue. I think that the court solely based on the allegation that the HIST office of professional standards and office which many districts don't have. Sometimes conducts employment investigations that from that you can extrapolate as a matter of theory and law that somehow these lawyers outside independent investigators who were hired for their independence from the government entity and not acting under color of law. That somehow they were taking on an exclusively traditional public function of the government. Your honor we know by the jurisprudence of this court and the Supreme Court that test is reserved for very narrow circumstances like operations of prisons that have historically always been within the realm of the government's operations. But when governmental entities of all stripes and particularly municipalities that don't have the resources to have inside investigative teams use lawyers. They do so with the understanding that they are not speaking as agents of the entity but they are independent and for that reason they cannot be state actors. I see that I am out of time I simply request that the panel affirm the district court's decision with respect to our clients. First of all in answer to your question judge where they lawyers or where they not what did the pleadings say I had hoped that the trial judge would read the pleadings and I had hoped the counsel would read the pleadings. When you asked that question you didn't get a good answer. In the pleadings it stated how the contract between Elizabeth Mottakroger and Jackson Wisdom and her firm specified what they could do or what they couldn't do. In the pleadings it stated what the report that Elizabeth Mottakroger constructed stated on the face of it. If you look at the brief page 11 footnote 6 I cite the record on the field and I say and I quote her report it says this report is prepared by MDJW for fact finding purposes and is not intended to be legal advice. And then in bold thought it's confidential not for public disclosure original 407 Houston Independent School District confidential investigative report here and after confidential report and at the bottom of each page it's copyrighted. Secondly the question comes up well what about Ms. Banks she just resigned and what somewhere else. Do you know that even today when you go on the internet you can find this report of Elizabeth Mottakroger. Even today it's still out there floating out there saying the ball things that it said in 2010 today. Diane Banks sure after she won and by the way when council Mr. Michelle prosecuted her for the district he got in there and much to his credit. He said the real issue is whether or not she cooperated or didn't cooperate with regards to add a bio. That's laid out in the pleading that's laid out the police and when Banks won she did resign she resigned and went to another district because she didn't trust him anymore when she got to the other district she was laid off that district is represented but the same outside firm the representative HSD I don't know. But the only place that she could go because she was being astigmatized her virtual certificate was being labeled under investigation the only place she could go work was the place that had put the stigma owner HSD indentured servitude I think it is but that's the only place she could go Patrick Cockerham he didn't work for a year. In terms of the in terms of the the oh yes speech I want to talk to you just for a minute about speech the judges right he says there are there are five things of speech five elements of speech that Caleb outlines number one that the 2005 speech but he says that's two remote. But excuse me Caleb didn't interject that into the play she didn't interject that into the game Mata Kroger on her own breath that up in her report the 2007 speech when Bable Caleb goes to the public and she's answering questions about whether or not there is indeed toxic mole poisoning her faculty and her kids and the school district says monkey see monkey do that's not believable. And then CDC comes in and say wait a minute you've got toxic mole and HSD has has mud all over their face. And she became the figure that's the paper said yes my kids are getting sick my faculty is getting sick and what about what about that how did that get into the case Mabel Caleb's 2007 2007 episode on the mold interjected by Mata Kroger Mabel Caleb didn't bring it up it would only be remote if Mabel Caleb said I did this back then and this is the effect now. Then you'd have to look and say well what is the temporal proximity isn't that remoteness but that's not what happened what happened is Mabel Caleb's 2005 and 2007 activities were brought together put together by Mata Kroger Mabel Caleb never never asserted that. And then the third element of speech November 12th the judge started passes that off he says what she was invited to talk about who was going to replace her I've already covered that parking lots picket signs and Terry Greer was called a liar a liar publicly but more importantly in the pleadings Mabel Mata Kroger tells you that Mabel Caleb was not there to support the HSD. Now you say well okay but how do we know about the furniture you know what all HSD ever did about the furniture was they say well we had a policy all the furniture went to cashmere that was her furniture mode the computers went to cashmere that's okay. And there were PC to forms filled out it was done appropriately and the district all it did was create a reason to conduct a post November 12th reason to conduct an investigation to get to get to my client. You know about this compel speech business let me tell you here's where I see that I live on a farm you can make a horse come to the to the water draw but you can't make them dream and that's exactly they have an obligation they have an obligation is employees to get involved in participate every single client participated in the investigation conducted by Mata Kroger you say well but council says she didn't have any evidence. The record is silent about what she did or why she was doing it that's not true. Mr. Watts I'm sorry you cheated your time thank you. Please look at that please. Before I begin to join until 1 p.m. Wednesday