those issues before the courts and that is whether and railroads rule that employ musts recording angel immediately no matter how small the injury is a violation of the federal st if the regular chooses to enforce a rule by firing an employee merely for violating that only rule now under the st it is a protected act that employee cannot be fire was fired soley for the timing of when he engaged in protective activity he was not fired for some misconduct unrelated to this very reason other than he did not with the agent protect activity decision maker testified that this railroad i'm told i'm asking a hypothetical if the railroad had learned of the injury without any reporting by your client and that he had gone to day to day five because the railroad states actually very little on talking the pound as i'm trying to make clear that the only issue here comes from the combination on the report the late reporting and the fact that it's a report but if if so if you take it out of it and we have a combination how do we deal with causation intruding factor and all that but all i'm saying is if the reporting itself is taken out seems to me and you correct me that the railroad had every right to vir but not having ever reported an injury i would say well next case there will be a protective masks because the railroad here i understand your hypothetical i'm a railroad here specifically said that they don't consider has a rule that said carla's or your injury it no matter how small the decision maker even made it a paper if you do not report that immediately you will be fired and under oath his own guidance it says if you're going to have a time a man or rule mechanism of injury if an employee doesn't court even the smallest intermediately they will be fired which is in a basically creates a situation where employee if he disclose realizes hey this case buck my knee and it's got a lot of a little bit worse if he doesn't come forward arguably it's hard to say what would be right out or immediately so he fired which goes directly against the very the place where he sent it occurred so it impaired their ability to create a safe workplace could be the argument that they would make so it's not is it's not as and that's what's critical here is looking at what was the reason it was just for late reporting that he was art and the issue was not with the rule of reporting injury immediately it's that we will fire you if you don't tell us  investigating that they found that he was stealing materials or maybe he was using drugs on the job but one insurer cause that your theory of contributing factor is that if the protected activity is any part of the chain of events affirmative defense able to say ok they maybe it was because of being agent protected activity maybe it was because he filed late we think it was based on the facts when the fact finder we think it's because he filed l consequences for his own workplace this conduct by reporting that misconduct to the carrier himself there's no dispute in this case why exactly mr gal was fired he was fired because he failed to timely report his workplace injury as for the safety policy required he wasn't fired for reporting his injury he was fired because he didn't report his injury at least not when he was supposed to have reported it is belated decision to lay neither added to nor subtracted from his already completed misconduct mr youall doesn't deny any of this instead he argues that by  part of the briefing years as pointed out references out a chain of events can go back to the beginning of time as a force computing fact to some a vent this is a fairly limited chain and regardless of what seems reasonable  was a contributing factor near variable action or deal with the same action defense and factual i guess we're always going to run up against a fairly clear outside of statutory meaning fairly clear contributing factor was the reporting of whether it's a whistleblower or whether something else what in your view is the best test that courts have used that would be consistent was you but you think is there i'm way to analyze decision from the ken circuit in that case the th circuit rejected the arguments that the employee would point to just the bare chain of events between reporting his misconduct and and being disciplined for that misconduct but then the th circuit said that nonetheless his case the go forward because he had shown more than that specifically he had shown that he had been warmed by his supervisors not to report the injury not to not to make a protective report and they hinted sort of darkly unfavorable consequences for reporting they also emphasized the court also emphasize the fact that the investigation that ultimately was used as a reason to discipline him had to gone before the investigation of the of the accidents suggesting that his own report had merely alerted them to his misconduct so that decision i think strikes the correct balance between not allowing an employee to point to nothing more than that chain of events between their own reporting their own wrongdoing and being punished for that while also allowing even such an employee to satisfy the cost that the statute and and obtain your liability prevail if they have other evidence and it's not an especially stringent apply to the specs yes your honor under the contributing factor standard as a matter of proximate causation on employee cannot point to soley the bare chain of events between reporting their own is that he was fired because he reported his injury late and that led fort worth to discover misconduct on his part and to discipline him for that he does not point to any other evidence of retaliation if he had other evidence whether direct interact you know we're not talking about the strength of that evidence points to nothing else and the the a when it is clear that an employee at the employer made th soley for their failure to report timely then the report itself was not a factor in their decision in their decision making now some circuits have discussed the need for retaliatory intent or motive or showing of actual retaliation the error be did not resolve this case on background and so on to the cherry one doctor and that i believe that ground is not available for h ts here but i will note that at the same action defense stage an employer's motive may have a certain relevance that it doesn't necessarily have a contributing factor stage and that's because of the same action defense stage you're asking what the employer would have done had it had had the employee not taken the protected activity and so you're sort of necessarily there inquiring into the employer's motive on some level now one reason why it's more appropriate to consider motive at the same action defense stage is because that gives the employee the benefit of the more favorable burden of proof at the same action defense stage usually when there's an ambiguous statue the government's arguing for deference i found it notable in your briefs you didn't try to invoke deference what is the government's position on deference and if you're not seeking deference i'm curious why that is maybe because different agencies administer this the statue your honor frankly our thinking was that we don't need deference on this we don't need chevron deference we don't need another form of deference we think that the issue is fairly straightforward you know there's a there's a question there's a question about whether deference would apply and we thought frankly that making the arguments for why chevron deference is available would be more knesset knew you know what might not be worth it just because we think that even reviewing to know bo the result is straightforward so that's not to say that chevron deference does not apply we're just not relying on that here why when you said there might be a there's a question about whether it would apply the w that's that's that's one reason iran or another is just the question of whether a statute is ambiguous is always a you know it's difficult question you know depending on the tools of statutory interpretation you you sort of there's to a certain i did not report my injuries any of my coworkers or other authorities so it's clear that in his mind he knew it was injury and that he waited at least a way to or did it and as one of the  correctly pointed out after that injury which he did not record he had swelling in the lab and he also raft the land so it's something that he knew he violated the rule and either ordered it mandate to allow people to report injuries when the river runs down here and when the a or b is uptown i feel stifles that if an employee for whatever reason is a little bit late employee is late in reporting and you can no longer report an interview without fear of terminations well you've got the whole purpose d of this statute choice a is to promote safety and how do we do that unless we have a which tells employees you must report immediately that the words if you have a situation that there is an out there and i say condition that caused injury and if you have no other witnesses the different views are raising the purpose seems to be to allow employees to report their injuries and to be compensated and not to be fired for it and the other side of it is safety and those two interests are colliding in this this case a week late may not under our rule especially where that we lay as prevented an investigation then the there has to be a disciplinary result which in star in his own handwriting twice he stated i was injured a week ago so you obviously knew and we know that coupled with the fact that he had pain he testified that he rapped i allows a leave of absence the next baby boy goes out of town it's the poisoning of a seafood restaurant one with find under a mere chain of causation standard that the employers granting the leave was the cause of the food poisoning and again that cannot be the law and and if that is the law it basically pre dates almost a strict liability situation for the employer to try to enforce a late reporting if if the fact that he had filed this complaint relating to an injury that indicated in that in gage in some kind of theft or on the misconduct in the course of investigating that then you had to report that that that the protected nature of the right to file an injury report would not protect him from the but for the me the dahlan of the complete the misconduct would not have been discovered so you're not arguing that it's a but for  course of his fallen a protected complaint can he be fired for that misconduct when the protected complaint was a contributing factor to the determination that he had engaged in misconduct that they would have fired and employ they're required to show that they were expecting the same discipline absent the employer gauge and protect activity and reporting on the job or injuries gazing in protected activity and that's the whole thing here now