job in portland to his job in virginia was motivated in part by a desire for reprisals that is the employer's decision was motivated by a desire for reprisal that's what he was obligated to show to make out he's clean of retaliation that there's evidence certainly that the person who initiated the investigation or the review had some by age five so my question is when we try to look at causation yes as to whether there's a retaliatory intent would we have to conclude at the the staging maker committee or review panel was really a rubber stamp for the middle manager who started this whole thing rolling or would it be a novice if there was something that that manager did that was relied knowledge of the protected activity so i mean that's certainly true here there's no suggestion that ms tissue or the commissioner of customs with the family agency decision maker here rubber stamp or in any way simply approve something to deliberate the person with the one where the court said the argument there was similar the final agency decision maker was concededly unbiased and the argument for the defendant was no liability of the person who made the decision has no bias and what t proposed by mr hill very and added several names of their own i would also note that the horse investigative panel interviewed mr poland exhaustively and furthermore mr poland submitted one hundred eighty pages of documentation of his side of the story when an employer undertakes to figure out what the truth of the matter is in the particular case that they need to ask mr that the person they're investigating who do you think we ought to talk to that might be a good idea but here i mean if there's any incident in which when mr pauling was reporting to the office in seattle there was an incident in which the only female officer in his office came into work one day and found a full color photograph of firm on her de investigation that was the investigation after that incident it was some number of years you're on yet and there's no the point here is not that there was any mistreats firing incident in eighty eight culminating incident that would have prompted an adverse employment action in fact the discipline review board which is the intermediate level of review in this process concluded in mr poland's favor that there was no basis for a formal demotion or any kind of formal disciplinary action because precisely because the allegations in the findings of the administrative inquiry panel were sort of generic things spread over a series of years what the discipline review board said was it's clear that from all of th they didn't terminate him they transferred him to the east coast and in a position where you get the same pay without being a supervisor that's correct and furthermore they paid for his move across constructively terminated which is what the district court found yes that is what the district court found maybe you could address constructive terminations because that that was a major issue in my mind  sentences and the reasoning if yours to be that mr poland believed that it was a career ending position that there is no for the prospect for advancement and he was reasonable in believing that therefore he was constructively discharged something that is true that his advancement but i think it does not follow from that that any person in one of those jobs has there has for that reason been constructively fire making a difference in moving three thousand miles across the country i think it might in some circumstances run of a not here i mean damages and that's for several reasons because often to take a step back there is a difference between the standard from what is a adverse employment action for purposes of retaliation to the injury and this is one of those cases here he was no change in pay or benefits and for the more they paid for his move he gave them a living style and so the fact that those standards aren't the same don't match up necessarily contemplates that there will be cases let me ask this question on damages in this kind of a case if we decided it was retaliates story transfer because of the role of the middle level like you know emotional distress or i mean would it would that be considered since the salary was the right say could be recover after some fact receiving some measure of damages if  right that's the only kind of damages that congress is contemplating now i hesitate to add i mean i hasten to add all of this could have been avoided if mr poland assuming that the that he showed that his transfer across the country was motivated by retaliation all this could have been avoided if he had stayed in his job and said i want to be put back in my position but we don't have any argument that that he was entitled to assert that but instead mr poland said i'm going to work here i'm not going to make any noise about my working conditions and then i'm just going to take early retirement and having taken early retirement receiving this from the federal civil service is not a position now to seek reinstatement and they never sought that and so he was left to seek whatever economic interest in just that that flows from the fact as i said before that there is no there is a difference between could we if we were if you would judge ruled with discussing with you we sent it back on the damage if you know i think in a court of course can order the remedy it thinks is appropriate i can tell you the government's argument that case would be look you through this whole trial you never said you wanted reinstatement you didn't say you want to go back your previous job in portland you never asked for like this one was he didn't have a choice other than to resign or be fired let let's let me cut right to the quick on that sure i mean my my view is the causation issue is very difficult to come back to that idea that reducing someone's responsibilities while pinned on the same amount of money amounts to constructive discharge so if you have you know what i would say what's your  on that point i understand the general standard would an objective person feel it's just intolerable to continue work why would an objective person consider working for the same pay with less responsibility sponsibility means their fire well judge it's unfortunately there are no bright lines in this area we've cited cases to you there's no case that's quite on point i couldn't find a case on either not you know you know that that there is it is constructive terminations or it isn't so be an issue of first impression there is it is well i don't know first impression i think there's some there's some broad guidelines here that the district court and applied and it this was he had lived in portland to begin with for ten years he had family here he had kids in high school as wife was here and he was you know he was involved in establishing the community what they did was on thirty days notice they took him out of  wasn't in portland and they forcibly transferred him clear across country to view to vienna in virginia gave him a dead end job and it was a dead end job at your fifty eight he tells you exactly what he was told to do once he got there and i asked him this during the trial i said what we're doing he said what i was told to do was they would bring papers to me in the morning and one side of my task i would put them in the middle of my desk look at them check a box and put them on the other side of the desk so i move papers from the left side to the right side now this was a man who was the resident resident agent in charge of the foreland offas the highest customs official in this part of the country and what they did to this poor man was they took them from portland oregon in a very high position it's almost like a rat example your honor they took him from this very high there weren't any wraps i'm aware of but they took him from this very high position in portland oregon and they stuck him against the wall into told him to move papers from one side of the desk to the other by when he i would have a motion for her that he had asked for his position back why would i not ask for that for the reason that i think the district court if your honors there's a finding on in this or maybe seclusion of law there's a conclusion of law by judge brown where she says that he had made other  a nation complaints and retaliation complaints and they were he was met with reprisals in fact that's what got him in the in this situation to begin with he was making age discrimination points and we tally ation complain against this guy hill's hill berry who was not a middle manager by the way he was a senior manager in the denver office he was synonymous with the customs service he was making these complaints against this guy still very he was making them to customs and it was make it was making his wife worse so judge brown also found that he reasonably believed at that point based upon his twenty seven years with is the victim of sexual harassment will not ask for their job back if the harassment is still there you will not ask for your job back to go into a sexually harassing situation and this is the same kind of situation you will not ask in the alternative it was especially for what was alleged in the complaint which was for early retirement he wanted the difference because i was going to work out the x number you know this day and i was forced to retire so ward me this amount and that's exactly the amount that  law which says that he had made these complaints previously and every time that he made them there was a retaliation so it doesn't make any sense to keep on making compla try to work with the organization when when you do try to work with the organization and follow their ego procedures and so forth you get a retaliation it doesn't make it at some point you stop it but if you tell the federal court they retaliated and because presumably if the federal court said you retaliated that you were retaliated against in reinstating you as a remedy that you wouldn't expect that there could be retaliation for that equal to construct the trip the first one would be that he was demoted to a nonce advisory position that was clear he was a manager and supervisor he was supervising no one and was a force three thousand mile transfer away from his family to a dead end desk job which is what it was and then i think also central to the court's decision was that it was a reason he had a reasonable belief that this was a career ending event he was close up against his retirement and based upon his own understanding is there any evidence in the records that show that it was you know that the customs agency you know nothing about routinely but if you work for them that you can expect to be transferred across the country you know that in there is a document that was admitted and i i don't recall the exhibit number which says that when you sign on the customs you agree that you can go i guess anywhere in the world or be transferred anywhere in the world that's correct there is that  me get back to the to the issue of constructive discharge just for a second you are circuits precedents indicate any level of half friends that were supposed to give to reviewing judge brown's lucian on constructive discharge mr preston yeah i mean my impression was that there were some cases  held responsible for retaliation in light of the middle managers initiation of this it sounded as if the language in that hernandez  last case might suggest that they would be responsible if they rubber stamped with a subordinate did that apart from that apart from a rubber stamp that it was really clear to me what the law is if the subordinates if the person with animas as just sort of set things in motion or maybe affected them somewhat by giving a witness list do we have any any law on that subject there's nothing clearly stated your honor and in fact it's not a rubber stamp standard it's not that's not the law of the circuit in fact i've cited you bill brock there's birth green there's a number of cases there seem to be a number of considerations in the court seems to be looking for how closely involved with the  decision the biased person is ok in this case there first of all it's clear that the district court found that there never would have been any kind of discipline that all extreme and rubberstamp of the other and wonder if the law is somewhere in between and that's why it's important to understand the process here and the process is that mr hill very clearly retaliate he was he was the customs service he was sufficiently high in the pecking order of the customs service that he is synonymous with the customs service and the district court said custo brags of all this old stuff that's been on his watch and he never did anything about it all of a sudden it's a problem for years worth and he snuck this all into his his sixteen page memo which frame the issues for the disciplinary panel ok not only does he do that he attaches to that twenty one list twenty one no witnesses list of twenty one witnesses that he wants the disciplinary panel take a look at so now he's framed the issues he told them who he has said go talk to these witnesses who have either personally experienced mr poland's insulting american few havior who are or who have heard of his demeaning behavior twenty one i went through those twenty one and i my numbers are different considerably then counsel there were seventeen interviews an affidavit that they that they went and did twelve of those were from the people on the list putting mr hilberg one was not on the list but as is mentioned in the text i had left go who's very critical of mr poland to others who were very critical of mr poland so we and then mr hellman industry poland himself so out of seventeen fifteen and of being very critical so now he's framed the issues now he's told the discipline or here's the witnesses to go talk to these folks and on top of that in a six hundred page record he throws in two hundred of the pages to further further put the icing on the cake here and then he's one of the prime witnesses that they interview so i my point is this your honor if it's not by for causation it is not just the motivating factor that once you set the ball in motion plus the cost that once custom sets the ball in motion has thems have to do something truly independent to break the chain of causation this would not have been investigated except for mr berry there was no there was no other event that came up that they started investigating that then led to the construct of this charge this was all of a look at what hill barry did you frame the issues he submitted the witnesses he appeared as a witness and then he submitted the docket one third over one third of the documentation so would be appropriate for this court to do anything else other than we know when to remain on right it would still be open for him to say i've changed my mind i want to go back to work maybe he doesn't want to but would he legally have allowed to submit names or into for the investigation i believe the record reflects that when he got when they got to the point of interviewing him he did submit three names something like that interview i believe they were interviewed but i don't i also believe that they're there or their statements weren't really given any weight and i think they're very good evidence of that is the fact you know you could see them at the front of the investigation report t thinking of a lot of your time with our questions so you know if you need another minute or two i don't really have to go to your own i think we're given mr keeney a little extra time i believe i've said everything i need thank you very much thank you very much mr freeman case is that it is common ground among all the parties in that case that an independent appraisal of the facts by the employer cuts off liability question in that case was is the difference between the majority and the dissent in the not taking the facts from any of you i'm going to go look at the facts myself then that is the end of the line that's no liability because employers decision so long as it's based on the end of that on that investigation is not motivated by nothing more that the customs service in this circumstance could reasonably have been expected to do than to appoint a panel of three people who had no relationship between the parties to figure out what happened and and these were gra responsibility for the customs service operations in parts of the west coast so he was from colorado all the way west i don't know if it was every state you know it was some included portland seattle and a couple other place mr poland was supervised by the agent in seattle that's right and then they reorganized in some way and you became subject to supervision of the guy and that's right and then but all of into that yes but hadn't provided a long witness list the government would have a much easier yes position and so you know if we adopt a substantial influence or material argument from both sides very nicely argue the court will now