versus central docks in school district. Mr. Straske. Yes, good morning, Your Honours. May I please the Court and the Austrausky Council for the appellant who is the plaintiff below in this case. This is not a unique case in terms of First Amendment and now I mean every fact, every case in the First Amendment case is unique factually. But in terms of the overall factual matrix, there's nothing real unique about it in terms of anything that this Court has considered in the past. There's really no, never been and there is not now a dispute on whether there is First Amendment and protected activity at issue. Just real generally it was involved a teacher at a high school report, some mold conditions, public reports, things of that nature. The district judge did a pretty careful job here. And I understand, I'd like to hear what you have to say about the pattern argument here. Well, you're on it. Did the district court do a, is it 40 page opinion, a careful job? Because I look at page 49 of the appendix and the error is manifest and clear right in the way the court framed the issue. Under the second problem of the retaliation test, the court must determine one whether the acts attributed to defendants are adverse employment actions
. And two, if so, whether the defendants personally participated. This notion that there's an adverse employment action requirement in the First Amendment retaliation case is nothing that is nowhere in the law. The only standard that has ever applied in the First Amendment case is this standard articulated by the Court in soup hand back in 2000, whether the conduct is sufficient to deter a person of ordinary firmness in the continued pursuit of his or her First Amendment rights. The old, the old, the old, root hand versus Republican party adage, you know, an act as trivial as denying an employee a piece of birthday cake. If it is intended to retaliate for, for past protected activity, is sufficient under the First Amendment? Where the alleged retaliation is speech, haven't we applied a bit stricter scrutiny than your birthday cake example would indicate? When the protected, I'm sorry you're on the right. When the alleged retaliatory activity is speech, and in this instance, it seems to be all speech. You know, you can correct me if I'm wrong, but it appears to be complaints that the school district officials said things to the press or said things to Ms. Smith. Oh, there were said things to other people. When it's, when it's speech, my question to you is, is there a somewhat higher standard or threshold to meet in trying to make the case that a person of ordinary sensibilities would be deterred? Before I answer the question, I'd neglected specifically to reserve three minutes for rebuttal. I see that the authority accounted for. Thank you. Your Honor, no
. You know, I mean, and frankly, it concerns me to hear that there's some kind of heightened scrutiny being suggested. This is the first amendment case. I'm asking you the question. I'm asking you questions. I'm not suggesting anything. Oh, I understand, Your Honor. But the term heightened scrutiny for a civil rights litigator is not a term that I'm very comfortable with. And it's been, it's been bandied about and it's been, you know, tried to be employed in the pleading context. And when I hear, and so, so well, I don't mean to suggest that you're saying anything other than answering questions, but no, there is no. There is no heightened scrutiny standard. And one of the, one of the problems that we're dealing with here is, you know, a conceptual problem, an analytical issue that somehow the courts, and I've dealt, you know, a lot with Judge Rambo in the past and, you know, had a number of first amendment cases for, before her. But to somehow, I forget my precise point, but to suggest, you know, to say that because it, in and of itself, is not a retaliatory action, does not deprive it of relevance, does not deprive it of materiality on the motives and intent of the party. So these issues that Judge Rambo considered in terms of, well, they said that she was being less and truthful when she was at the price and things of that nature
. Those to me, you know, they are not independently adverse or retaliatory actions in any event. What they are, as they are evidentiary, I thought you were alleging that the retaliation consisted in things like the comments that Superintendent Hassan made to the press in response to your client's press release. Certainly, that is a good development. Okay, so if you're saying that that's an example of retaliation, my question to you then is, what do we make of the assertion that we find in some case law, for example, Suarez Industries versus McGraw, the fourth circuit case, it's been quoted a bit in our circuit, that speech does not adversely affect the citizens' first amendments rights, even if the family. Doesn't that imply that public officials have a, have a first amendment right to speak to and that that can't be turned into an adverse action, or it can't be turned into a retaliatory act for which liability would lie. Well, I think we're taking this too far down the precise legal analytical road here because to me there is, you know, the evidence of what speech, whatever the public actors speech is, that is evidence of retaliation, if not legal retaliation in itself. And if that speech in itself was sufficient to deter a person of ordinary firmness in the pursuit of his or hers first amendment rights, then indeed, then that is a retaliatory speech. And those are Mr. Ostrowski, you're going to have to help me with that. I think I heard you say, even if it's not retaliation to speak as a public official in response to an employee, a public employee's statements, that it's evidence of retaliation. And then I thought I heard you say that it is in effect retaliation because it's evidence of retaliation in my following. No, no, I said that the speech itself actually could, if sufficient to deter a person of ordinary firmness, which is what Jerry said in Jerry boxes to make that determination, if it is sufficient to deter a person of ordinary firmness in the pursuit of their rights, it could conceivably be retaliation. And then I thought I heard you say that it is in effect retaliation in itself
. And if I can put it in terms of the Brennan case, there was one fact in the Brennan case that sparked footnote 16. And that fact was there was a complaint that the gentleman, Mr. Brennan, they were no longer capitalizing his title and they were spelling his name differently or something like that. This court frankly looked at that and said, that's pretty much a diminutive act. What the court was saying is that as a matter of law, the federal courts are not going to sit here and have somebody, even if they engage in protected activity, come in and occupy judicial resources because somebody is not putting a capital letter on their name. However, I would say that even in the context of Brennan, even though that is not independently a retaliatory action or adverse employment action, it's still evidence of the state of mind of the defendant. And that's a distinction I was trying to draw, Your Honor, that the remarks and words of the public employer, a supervisor, they could be retaliation, they could support a claim all by themselves, and they could not support a claim all by themselves. But if they cannot support a claim all by themselves, does that lead to the conclusion that they are therefore irrelevant? I don't think so. I think that they are still relevant to establish the state of mind of the speaker and the state of mind of the speaker in the context of the history of the events. So that's the best way I can summarize, address that. And then working that back to the district courts analysis, I mean to go through whether these are adverse employment actions. I mean, that is, and this has started to creep in in the recent cases, this adverse employment action notion. That is a Title VII notion
. The analysis under Title VII and First Amendment are distinctly different. You're determining employer liability under Title VII. But you cited the Brennan a minute ago. Specific acts that are claimed to be retaliatory and trying to understand them in the context of the case. Well, my understanding of Brennan was that the court looked at it that way because that's the way the argument was presented. That in, and I was, it was, it was, I mean, that's the way it was addressed and evidently was approved, right? Well, when the court, but the court seemed to go down that path and I couldn't understand myself. I think that Brennan, I think that Brennan in that specific regard is not a good decision because to break down, I mean, to require courts and appellate courts to look at discrete factual circumstances and to isolate that from the entire history of a case to determine whether that independently can support a First Amendment cause of action. I mean, that, that to me is, is it awfully intellectually cumbersome process when really the only analysis is, did this person alleged facts that you get them to trial? And there is never a First Amendment case that I am aware of that said in order to get to trial on the First Amendment case, you have to show an adverse employment action. You know, the, the theory is that this course of conduct, whether in Toto or in individually, you know, supports these claims. Now, if I can, if I can shift that now to how it even gets more complicated that the way the court handled it in this case is, you know, you take discrete facts and then analyze individuals, you know, active hands-on approach with respect to each fact. I mean, you know, you're just never going to tell a complete First Amendment story if this is the way that courts are going to handle First Amendment summary judgment decisions. Well, to what, to what significance must the retaliatory act to be actionable on a First Amendment context? Well, as for example, if a person working for a public agency made all kinds of public statements that work with taking First Amendment statements about problems with the agency, as a result, when the people in the office were having a Christmas party, they didn't invite that person to the Christmas party. But the active person on all the pay increases and everything else was still, would that be something that would be a retaliatory act, but could you actually sue for that? I would take that case, you know, I mean, I don't know the type, I don't have any credibility saying I would take that case, but why not? I mean, that, you know, if it is done by- Why not, because it, you know, there's lots of little things in life that you can't, you know
. But when you're on, we're across the street from Independence Hall, and this is the First Amendment of the Constitution. And the analysis is a little bit different here than when you're talking about not getting a pay raise, pay raise because of some congressionally created right. You're talking about, you know, doing, standing up and abiding by and enforcing and speaking out. They really don't want the person at the party, Christmas party, because they really can't stand them. Well, feeling with them, more as the party is, more as it concerns. Does that sounds like the exact analysis? Your question, your answer, and your follow-up question are exactly what jury should be doing in these cases. I mean, that's the jury function. There's no role for a judge to say, look, every perceived slight does not amount to a constitutional violation. And there are some things that we will not impose upon municipalities and government entities in the name of trying to suit somebody's feelings. And if it's not something we can see would deter somebody of ordinary sensibility. If it's de minimis, we're just not letting that go to a jury. You don't think that's- De minimis, you know, de minimis, Kira Alex has been part of the law as far as I know since the country has been here. I mean, that's what courts do, but- And then since a court has to make some judgment in that regard, I think I hear you conceding
. Doesn't the court have to look at what's alleged and make some judgment about specific allegations instead of saying, well, generally, I get a fake feeling of unease about this? It's got to look at what's alleged to be the retaliation and make some decisions about, does this even hit the point where it's past the minimis, it would deter somebody of ordinary sensibility? Judges got to do that, right? But, you know, not capitalizing someone's name independently is one thing. Not capitalizing someone's name in the course of, you know, seven adverse employment actions and hostile and abusive kind of- I'm not saying we had all this here, but there's two different analyses. And if somebody came before the court on a de minimis issue, the court can determine that it's de minimis. But how can you determine that one fact is de minimis? De minimis implies that the entire claim is de minimis. Not that one fact in the context of a much larger intellectual, you know, analysis is de minimis. My time is right, thank you. Mr. Astrosky, thank you very much. I'll have you back on Rebuttal. Thank you. David Torre. Good afternoon, Your Honor. There's some Stephanie Debatore here today on behalf of the Appellis Central Duffen School District and the individual Appellis
. Dr. Hassan, Mr. Mazzatesta, and Ms. Hollins. I'd like to start on the courts questioning and Mr. Astrosky's discussion focused on summary judgment. And I think that the law is clear in this circuit and throughout the country that in order to survive summary judgment on a 1983 free speech retaliation claim, there must be sufficient evidence or sufficient evidence to create a factual dispute concerning whether the individual. Let me ask you this. District Judge, I thought looked at each one of the matters that were complained of and found most of them wanting. But did the district judge sufficiently consider all of them as a pattern of conduct and deal with them in the totality? I believe that the district court judge properly applied federal law to the evidence in this case. It was suggested that nowhere in the law is there this requirement that the retaliation constitute an adverse employment action. And I think that's directly contrary to longstanding precedent of this court, for example, the Robinson decision, which is early as 1997, but more recently the Suarez, Soupan, all of these cases state that in order to proceed the alleged retaliation must rise to the level of an adverse employment action. You think you're adversely stating the state's the law? Yes, Your Honor, I do
. I think it's fully detailed in our brief. But the Brennan case constituted judgment as a matter of law, but in the Soupan decision, this court actually found that the summary judgment was improperly granted because the alleged retaliation in that case assigning an employee low rankings constituted an adverse employment action. It is part of federal law that in these claims the court needs to look at every alleged act of retaliation to determine if it meets the threshold. I think it's also important to note that the plaintiff in this case has not made a hostile work environment claim. It's maintained in the brief that the court aired. It points to Brennan and suggests that there's a hostile work environment. That is not what was alleged in the complaint and the amended complaint. There's been no allegation whatsoever in this proceeding until briefs were filed of hostile work environment. Can I ask you about the decision to keep Ms. Hoke-Lander? I'm not sure if I'm saying her name correctly or not. That's correct. Okay. The decision by the disrequired to keep her off the stand
. The judge indicated that she didn't think there was really anything relevant in what Ms. Hoke-Lander was going to testify to. I understood your opponent's assertion at trial to be she's going to directly contradict what Mr. Mazatestis says and that that would be impeaching. By implication it would show an ill motive hostility. What's wrong with that assertion that there's an opportunity to show bias and an opportunity to show an ill motive if Ms. Hoke-Lander testifies and says, yes, he wanted to read all these email exchanges after he came to my house and wanted to get all that insight information. I believe your honor that the district court properly found that Mr. Mazatestis didn't actually testify about coming to the house. But I think more importantly the court found that Ms. Hoke-Lander's testimony allegedly to impeach Mr. Mazatestis was not relevant to any of the issues remaining at trial. It concerned a claim of withholding information that was not lodged against Mr. Mazatestis. What does it matter that it wasn't lodged against Mr. Mazatestis if the assertion by the plaintiff is in effect they're out to get me. And they have a piece of proof that shows what they assert is ill motive by one of the folks who's out to get her. Does it matter that the specific issue might not lead to liability for Mr. Mazatestis or is it relevant about the mindset of the actors generally? I think your honor that it does matter that it doesn't would not lead to the potential liability of Mr. Mazatestis. Why? Because it isn't directly impeaching testimony and so it's only it would be highly prejudicial and not relevant to any of the remaining claims. It's not relevant to bias at all. No, you're on I don't believe it is. I believe that the plaintiff had the burden of producing evidence that the alleged retaliatory actions were directly caused by the protected speech. And I don't believe that it would be relevant to that burden of proof. We believe that the district court properly applied the standards and federal law and reaching a decision on some reenjudgment both in requiring that it be demonstrated that the retaliation constituted adverse employment action also in ruling that the plaintiff was required
. Mazatestis. What does it matter that it wasn't lodged against Mr. Mazatestis if the assertion by the plaintiff is in effect they're out to get me. And they have a piece of proof that shows what they assert is ill motive by one of the folks who's out to get her. Does it matter that the specific issue might not lead to liability for Mr. Mazatestis or is it relevant about the mindset of the actors generally? I think your honor that it does matter that it doesn't would not lead to the potential liability of Mr. Mazatestis. Why? Because it isn't directly impeaching testimony and so it's only it would be highly prejudicial and not relevant to any of the remaining claims. It's not relevant to bias at all. No, you're on I don't believe it is. I believe that the plaintiff had the burden of producing evidence that the alleged retaliatory actions were directly caused by the protected speech. And I don't believe that it would be relevant to that burden of proof. We believe that the district court properly applied the standards and federal law and reaching a decision on some reenjudgment both in requiring that it be demonstrated that the retaliation constituted adverse employment action also in ruling that the plaintiff was required. In order to maintain the claims against the individual defendants to demonstrate that the individual defendants had actually participated in the alleged retaliatory conduct or had knowledge of and supervisory authority over those individuals, which is another issue that has been raised by Ms. Smith on appeal. So specifically Ms. Smith points to the Robinson decision and claims that all the claims should have proceeded based on agency law as per Robinson. I think review of the Robinson decision decision is clear that Judge Rambo correctly interpreted the law in order for the claim against an individual defendant to proceed. There must be genuine issues of material fact as to whether they participated in the alleged action or had knowledge of the alleged action and was supervising the alleged perpetrator. How do you distinguish this case from Merkel versus Upper Darby where there appear to be some factual similarities in that there were comments made to the press by the district and this court indicated that the court was not guilty. There was enough in what happened there that it should have been permitted or at least it was actionable what the school district had done in speaking to the press. How do you distinguish it? Well, I believe in this case it the alleged retaliation that the plaintiff sets forth in the complaint are the four claims that actually were presented during trial with hold to give information denial of the coaching position, medical force medical leave and her class assignments after she was returned. And the remaining claims that were presented in the discounted at summary judgment are rejected weren't claims that the school district went to the press but instead claims that Dr. Hassan made false statements about the plaintiff claims that Mr. Mazatol, Mazatesta told others he believed the plaintiff was lying and that the school district prohibited Smith from teaching about the environmental conditions in the school in her classroom. And so I believe that those are distinct from the actual factual allegations in Merkel and certainly I think it's the Robinson case where this court held that near public comments and oral reprimands do not rise to the level of adverse employment action
. In order to maintain the claims against the individual defendants to demonstrate that the individual defendants had actually participated in the alleged retaliatory conduct or had knowledge of and supervisory authority over those individuals, which is another issue that has been raised by Ms. Smith on appeal. So specifically Ms. Smith points to the Robinson decision and claims that all the claims should have proceeded based on agency law as per Robinson. I think review of the Robinson decision decision is clear that Judge Rambo correctly interpreted the law in order for the claim against an individual defendant to proceed. There must be genuine issues of material fact as to whether they participated in the alleged action or had knowledge of the alleged action and was supervising the alleged perpetrator. How do you distinguish this case from Merkel versus Upper Darby where there appear to be some factual similarities in that there were comments made to the press by the district and this court indicated that the court was not guilty. There was enough in what happened there that it should have been permitted or at least it was actionable what the school district had done in speaking to the press. How do you distinguish it? Well, I believe in this case it the alleged retaliation that the plaintiff sets forth in the complaint are the four claims that actually were presented during trial with hold to give information denial of the coaching position, medical force medical leave and her class assignments after she was returned. And the remaining claims that were presented in the discounted at summary judgment are rejected weren't claims that the school district went to the press but instead claims that Dr. Hassan made false statements about the plaintiff claims that Mr. Mazatol, Mazatesta told others he believed the plaintiff was lying and that the school district prohibited Smith from teaching about the environmental conditions in the school in her classroom. And so I believe that those are distinct from the actual factual allegations in Merkel and certainly I think it's the Robinson case where this court held that near public comments and oral reprimands do not rise to the level of adverse employment action. There is a claim that the district court abused her discretion and with respect to Mr. Ferguson. Yes, Your Honor. And not delaying the trial to permit him to testify. Yes, Your Honor. I believe it's a bit unclear. The fact was that one week prior to the trial, Mr. Ferguson had a heart attack. Council for Ms. Smith didn't file a formal motion but made a verbal request that the trial be delayed until he's able to testify. In the brief submitted to this court, it suggested that the decision rejecting that request by Judge Rambo was unreasonable because videotaped depositions are boring and lose impact on jurors. And I think that federal law is clear and we can't set a precedent that the courts will continue a trial every time a witness, not even a party is unavailable due to illness. In addition, it would render a rule of evidence 804A4 completely meaningless
. There is a claim that the district court abused her discretion and with respect to Mr. Ferguson. Yes, Your Honor. And not delaying the trial to permit him to testify. Yes, Your Honor. I believe it's a bit unclear. The fact was that one week prior to the trial, Mr. Ferguson had a heart attack. Council for Ms. Smith didn't file a formal motion but made a verbal request that the trial be delayed until he's able to testify. In the brief submitted to this court, it suggested that the decision rejecting that request by Judge Rambo was unreasonable because videotaped depositions are boring and lose impact on jurors. And I think that federal law is clear and we can't set a precedent that the courts will continue a trial every time a witness, not even a party is unavailable due to illness. In addition, it would render a rule of evidence 804A4 completely meaningless. I mean, that's an express exception to the hearsay rule to present deposition testimony when the witness is unavailable due to physical illness. Further, the case is cited in our brief including the beer decision demonstrate that there's no abuse of discretion for refusing to delay a trial due to witness unavailability when the evidence is available from other sources. This isn't even a case where they had to reach to other witnesses. This is a case where Mr. Ferguson was videotaped in his deposition and those excerpts were permitted to be played to the jury. We believe that's consistent with federal laws as well. Any other questions? I don't know. Good. Thank you very much, Your Honor. Mr. Strosky? Yes, thank you, Your Honor. One thing that I neglected to mention that even if we exclude the summary judgment analysis, which we still contain was an error, we allege a first amendment case, you know, the term hostile work environment, that's another title seven term. We don't have to allege a hostile work environment in a first amendment case
. I mean, that's an express exception to the hearsay rule to present deposition testimony when the witness is unavailable due to physical illness. Further, the case is cited in our brief including the beer decision demonstrate that there's no abuse of discretion for refusing to delay a trial due to witness unavailability when the evidence is available from other sources. This isn't even a case where they had to reach to other witnesses. This is a case where Mr. Ferguson was videotaped in his deposition and those excerpts were permitted to be played to the jury. We believe that's consistent with federal laws as well. Any other questions? I don't know. Good. Thank you very much, Your Honor. Mr. Strosky? Yes, thank you, Your Honor. One thing that I neglected to mention that even if we exclude the summary judgment analysis, which we still contain was an error, we allege a first amendment case, you know, the term hostile work environment, that's another title seven term. We don't have to allege a hostile work environment in a first amendment case. You never did. You have to allege and prove that the conic was sufficient to deter a person of ordinary firmness. But even if we exclude all that from the analysis, there were four factual matters. You could retaliate against the person and have a first amendment right if, for example, the firm of persons hostile. Absolutely. And that would not be an adverse employment. So, I mean, there has to be some area where it doesn't have to be an either order of employment. That's my precise point. You know, this whole adverse employment. The party might not reach the party when asked. No. I'm going to read there, but I think the Christmas party would. Was there any allegation in this suit, however, that the retaliation was occurring outside the context of employment? I mean, there's no Ms
. You never did. You have to allege and prove that the conic was sufficient to deter a person of ordinary firmness. But even if we exclude all that from the analysis, there were four factual matters. You could retaliate against the person and have a first amendment right if, for example, the firm of persons hostile. Absolutely. And that would not be an adverse employment. So, I mean, there has to be some area where it doesn't have to be an either order of employment. That's my precise point. You know, this whole adverse employment. The party might not reach the party when asked. No. I'm going to read there, but I think the Christmas party would. Was there any allegation in this suit, however, that the retaliation was occurring outside the context of employment? I mean, there's no Ms. Hassan, Dr. Hassan, who I'm not sure what her title is, was going to burn my house down. It's all the allegations seem to be focused on things associated with the employment, right? That's a factual matter. I don't necessarily agree. I don't think that Mr. Mazatester. I'm asking you whether that's true or not. And if it's not true, tell me what evidence you had or what allegations you had that don't fit that paradigm. That is within the employment context. The issue of Mr. Mazatester wanting to go to Ms. Hopelander's house and sit at her computer at her house and read her emails. That, I mean, it all stems from and relates generally to the employment setting, but so does burning down someone's house who works for you in that context
. Hassan, Dr. Hassan, who I'm not sure what her title is, was going to burn my house down. It's all the allegations seem to be focused on things associated with the employment, right? That's a factual matter. I don't necessarily agree. I don't think that Mr. Mazatester. I'm asking you whether that's true or not. And if it's not true, tell me what evidence you had or what allegations you had that don't fit that paradigm. That is within the employment context. The issue of Mr. Mazatester wanting to go to Ms. Hopelander's house and sit at her computer at her house and read her emails. That, I mean, it all stems from and relates generally to the employment setting, but so does burning down someone's house who works for you in that context. Why is it retaliation if there's somebody else's house that reads emails? Well, and I think that Judge Jordan, you know, has the question there. I mean, that's indicative of the state of mind. I'm not saying that that's an retaliatory act in itself. I mean, I'm getting trapped into trying to make in the analytical fallacy that I think that the courts are making in these things. And that is by having to parse and identify when the relevant question is, is this course of conduct or the single act or this one event or these two events or these seven times? And so, I think that there are 14 events sufficient to deter a person of ordinary firmness and continue pursuit of their rights. If I can shift, even I think that there is agreement from the district court and maybe even this court that there were four matters that went to trial. There was a role 50 motion granted. I mean, my understanding of role 50 versus role 56 is that they are largely the same standard. These were the exact issues that were considered on summary judgment. The testimony of trial was not in variance with any of those issues. Yet the court at trial took three of those issues away from a jury. And there's just no support in the record for that. Well, when you say the testimony trial was not at all in variance with the testimony before trial
. Why is it retaliation if there's somebody else's house that reads emails? Well, and I think that Judge Jordan, you know, has the question there. I mean, that's indicative of the state of mind. I'm not saying that that's an retaliatory act in itself. I mean, I'm getting trapped into trying to make in the analytical fallacy that I think that the courts are making in these things. And that is by having to parse and identify when the relevant question is, is this course of conduct or the single act or this one event or these two events or these seven times? And so, I think that there are 14 events sufficient to deter a person of ordinary firmness and continue pursuit of their rights. If I can shift, even I think that there is agreement from the district court and maybe even this court that there were four matters that went to trial. There was a role 50 motion granted. I mean, my understanding of role 50 versus role 56 is that they are largely the same standard. These were the exact issues that were considered on summary judgment. The testimony of trial was not in variance with any of those issues. Yet the court at trial took three of those issues away from a jury. And there's just no support in the record for that. Well, when you say the testimony trial was not at all in variance with the testimony before trial. Let me ask you about one example, which I thought was intriguing at least. In her deposition testimony, Ms. Smith indicated that she thought that a teacher with less building seniority than she had was given a classroom. And the fact that she was a floater or a traveling teacher is one of the things that apparently was identified as an example of retaliatory conduct. Yet at trial, the testimony appeared to me to indicate that she acknowledged no this teacher, in fact, did appear to have more building seniority than she did. The teacher she had identified at her deposition, a football coach, who evidently had a year in the old school while she was out on a leave. Now, those are two very different sets of evidence. One, there's a teacher with less building seniority getting a classroom when I'm not. And then at trial, that one example evaporates. So if I've read the record correctly, doesn't that undermine your assertion that nothing different had heard a trial than a heard pretrial? That would undermine that assertion, your honor. We have a sanctions issue. Can I address that just for about 30 seconds? Please. You have council, enter an appearance, file an answer, file motions to dismiss for defendants
. Let me ask you about one example, which I thought was intriguing at least. In her deposition testimony, Ms. Smith indicated that she thought that a teacher with less building seniority than she had was given a classroom. And the fact that she was a floater or a traveling teacher is one of the things that apparently was identified as an example of retaliatory conduct. Yet at trial, the testimony appeared to me to indicate that she acknowledged no this teacher, in fact, did appear to have more building seniority than she did. The teacher she had identified at her deposition, a football coach, who evidently had a year in the old school while she was out on a leave. Now, those are two very different sets of evidence. One, there's a teacher with less building seniority getting a classroom when I'm not. And then at trial, that one example evaporates. So if I've read the record correctly, doesn't that undermine your assertion that nothing different had heard a trial than a heard pretrial? That would undermine that assertion, your honor. We have a sanctions issue. Can I address that just for about 30 seconds? Please. You have council, enter an appearance, file an answer, file motions to dismiss for defendants. Then when it comes time to serve them with depositions, the plaintiff has to go out and carry the burden and expense of trying to serve people with depositions. And then it comes time to their depositions, and that council says he's representing them on the record. Now, there's a lot more that goes on, there's a lot of informal on the telephone trying to work this stuff out in the middle district. And there was a lot of telephone calls about this issue. And for this court to not get on that phone and tell that defense attorney, you get those people to your depositions. That was an abusive discretion in itself. And this is the Paul that we work under. We're running around chasing people around trying to get depositions and losing sight of the facts that I can't address now, because I had to spend 17 hours getting a witness for a deposition rather than 17 hours studying Brennan and his progeny. I mean, that is inherently unfair. And I think that the court needs to take a close look at that issue. Good. Thank you, Mr. Astrosky
. Thank you. Thank you, Mr. Libertori. Case was well argued. We will take the matter under your advice