i please the court won't take offense to the students but they're going to miss out on something good i'm  sure i will would like to reserve five minutes for rebuttal and it's nice to be back with you you know all of the briefing and all the arguments about what words mean what and what legal principles apply it's easy to forget that this all started seven years ago with a pretty simple man in mr black to be trying to do a pretty or what seemed like a pretty simple thing at the time which is to report a very minor injury to his employer as he was required to do then being with ed this whole time i can say that if he knew at that time that he'd still be fighting this seven years later he probably would have never reported the injury in the first place and that's an issue and a real problem because the f r was put into place for exactly this reason so employees like ed could report their injuries without fear of discipline and certainly without fear of almost a decade of litigation can i ask a sort of cleaner question  here i went back and i read the closing arguments because i wanted to see how this jury instruction was argued to the jury and one of the things all that i noted in the  closing argument was and then i've been on this case before but i guess i didn't appreciate this is according to your to the railroads attorney a closing eventually this discipline was expunged by the appeal process is that right yes not as informally i guess the company decided to remove it well according to them they go up you go through the a p r and then ends up in front of a m xon rather rooter i'm not sure i announce that correct and he considers a case and says here that he then decides not to uphold the discipline and to eliminate it from his record so that his record currently has no record of any discipline having been imposed sachar act the discipline that is true that happened in that and there was testimony at trial that the discipline of the mood was removed however it was removed after mr black or be had served the entirety of the discipline and in fact it was even after the initial case had been filed so there is certainly a dispute as to whether being s f was doing it own volition or because they didn't think mr black or be had done anything wrong or whether it was in reaction to a case being filed ok so so your answer to that question i presume that is are still a controversy is that sort of like our last case they they took the action after after cases filed you might argue in response they might argue we just were doing the right thing but but that was there was disappointing a star on the record when the case was filed yes and m this case in is primarily about two jury instructions i think it's probably clear from a briefing that we don't agree with the correct case but i think that this case can certainly be resolved and can be reversed and remanded without disturbing that case district court gave instruction number seventeen which was sort of combination business judgment rule honest belief instruction and the issue with that instruction one of the issues with that instruction was that it didn't instruct the jury to actually apply the facts to the law and essentially allow the jury to decide the case without any reference to the plaintiff's professional case or to the railroads statutory affirmative defense essentially instructed the jury that they were to consider nothing else or they could have completely absolve the defense if they decided that the defense believed that mr blacker be violated this law or this this internal rule so basically the jury would only required to hold the n s f to its own self imposed standards now as the ninth circuit pointed out in the frost case in an almost identical situation instructing the jury in this manner deprived black would be of a remedy he may have been entitled to under the law because it permitted the jury to quote the actual issue and focus on whether he violated this rule as opposed to whether his protected act actually tended if it tended to affect in any way the decision to discipline him and that comes from frost mind fourteen f thirty eight eleven ninety seven and so the ninth circuit in that case addressed this armstrong case which came from the seventh circuit in which the district court relied on and given this instruction and they said look that doesn't apply here because the seventh circuit applied that instruction to whether the plaintiff actually engaged in protected act and then answered so that's not an issue in this case and that was an issue in our case either it's been decided as a matter of law that mr black or being gaijin protected activity a long time ago said look that instruction was erroneous the given here now there's another problem with the instruction in that it seemed to impose a an additional burden on the plaintiff and we know the f r s say it will sell everybody agrees that there's the citing plaintiff's claim and so it seems to impose this burden of proof on the plaintiff but there's no explanation within that instruction as to how that would fit into the statutory scheme and it can't because we know that there's only four  but it gets even more confusing because the instruction also tells the jury that they cannot cannot find be in s f liable if they find that b n s f had this honest belief that mr black would be violated this rule so in that context it seems that instruction is imposing a burden on being s f to prove this defense but again there's nothing within that instruction that would would tell the jury that and again it's in inaccurate statement of the law because we know there's only one statutory defense available to be n s f under the law which is that they would have taken the same action in the absence of the protected activity and that must be proven by clear and convincing evidence what's your response to the let's assume for purposes are arguments that you write that instruction number seventeen is not in sync by the district court as i understand it basically said wow even if even if you're right if you read the instructions as a whole they they convey the correct message to the jury and it gave you plenty of opportunity to argue to the jury in closing argument exactly what is required for acquittal there's two things to say about that number one i don't think there was any guidance for us to argue this to the jury in closing because again there was no guidance from the court in what the burden of proof was as to instruction number seventeen who who is supposed to prove whether b n f had this honest belief or not and then what was the burden of proof because plaintiffs prima fashion cases by preponderance of the evidence and then the burden shifts to the defense to prove the clear and convincing evidence there statutory defense and so that was not in the instruction at all and so there was really no way to instruct or direct the jury on how to consider this in their deliberations what eighteen sets out the affirmative defense says the the right has to prove a car convincing evidence of will take the same action language there's a several things and i also want to come back to because there are seventeen in between sixteen and eighteen which i think creates another issue but to answer your question you're out of the issue a sixteen is that is not an accurate statement of the law of this court's precedent  the way it's worded and well if you go back to what this course is stated in the past what this course did in the past under could hook under hyun and even under our case that was previously up on appeal has stated the plaintiff must demonstrate that being s s discipline was at least in part intentional retaliation prompted by his injure or and that comes from jaime forty nine f thirty seven twenty seven fighting to cut a in the ninth circuit martin case what did with the court instructed here is that the the jury was first to decide intentionally tally ation and the way and structure number sixteen is worded it leads the jury to believe that their first two and to determine really whether there was an adverse action taken because it struck the jury that you have to first decide whether there was intentional retaliation and adverse action again has been cited as a matter of law in this case for a long time and so that was never an issue but the way this instruction was worded and really the sequencing of the wording is important in these instructions particularly given this court's guidance so our argument is at the instruction of a sixteen misled the jury and led them to really conflate multiple philosophies and also injected a paragraph about the railroads affirmative defense into the instruction and contributing factor but again without any explanation to the jury about how those two factors that are played so there is no instruction to tell the jury hey you first have to decide whether there is a contributing factor and if you decide that then you  to the railroad statutory defense and by the way that's a white bird that they have to prove instead they it all kind of motion in the one instruction in sixteen with this cross reference to eighteen but in the meantime there was an instruction number seventeen which is this business judgment rule honest belief instruction that gave the n s f an absolute defense if the jury simply found that they believed mr black to be violated through all so the jury never actually had to get to the statutory defense they had this instruction number seventeen in between plaintiff's prima fashion case and their defense that said hey you don't even have to think about the law you just have to decide whether p and s f all their own rules and i think when you so and that just goes back to taking these these instructions in sequence of it even if the court and i would disagree with the court that the instructions as a whole provide an accurate picture to that to the jury because sixteen seventeen eighteen really just ripped the statutory scheme of the law completely there's no explanation of whose version is what how the burden shifting works what's to be decided first and next and then again there's this business judgment and  an honest belief instruction that we we obviously disagree with and i think the prejudice of these instructions is clear it's mr black of these cases pretty unique in that he wasn't disciplined for some unrelated rule violation like we had maybe an armstrong and seventh circuit or and frost in the ninth circuit or even some of the other cases that this court has heard the rule that mr black could be was accused of violating only comes into play when there's been a protected act when there's been an injury report and so for the jury not to be directed to specifically consider those facts and apply those facts to the law which they weren't required to do and on the instruction number seventeen was a great prejudice that to mr black or b and it also raises the issue of sixteen seventeen and eighteen all provided a quote unquote out to the defense and every one of those instructions stated that there was a reason why on different legal bases the jury did not have to find for the plaintiff so taken as a whole and made it seem like the plainest burden was much higher than it is and i think just in closing lesser questions i think it's important to circle back to why this court reversed and remanded the first time and that was based on the contributing factor instruction which except for one sentence that the court took issue with the rest of the instruction was a perfect recitation of the law and that one sentence which told the jury that they didn't that the plaintiff did not have to prove retaliatory intend to retaliatory and in this was what the court to why in light of cook but it still instructed the jury that they could consider such evidence but just on that one sentence alone the the court felt the need to reverse in remand here i think we have a much greater issue we've got three instructions or at least two that are complete misstatements of the law and when you take the three together a greatly prejudice the case and i think are more than sufficient to have this court reversed and remand judgment as a matter of law and motion for new trial it's the last item in the plaintiff's addendum to their brief and i'm sure you've looked at it but i would encourage you to to take another look at it after the argument it really goes to addresses every one of the points that is being that are being raised on appeal and in my view certainly dresses them them soundly let me start with the honest belief rule instruction number seventeen first and foremost  it's not a mistaken of wall because this court has said multiple times in discrimination actions and in f r s a action specifically that that rule applies now it's important or stand it's not a defense it's as being portrayed on the other side it's a guiding instruction and it's really just the flip side of the retaliation instruction so number sixteen the retaliation instruction tells the jury if you find we're tally ation do in whole or in part so in any way know which is important to the to the plight of these cases if you find retaliation then you're going to find for the for the plaintiff seventeen is just the flip side of it it's saying look the employer saying that it acted on this belief that  that there was a rule violation so if you find that's why the employer acted then you're going to rule for for the employer but that's not what the instruction says i think that's the problem that if maybe if that's what the instructions said  would be a problem i think clearly the first sentence of seventeen is in my mind says an actor statement of this is general but the second one says it cannot be the rebel cannot be held liable if you find that they had an honest belief that there was a rule violation so all they have to do is prove there's a rule violation or that they believe there was a room that says plaintiff based on its honestly held belief so that's why it acted it acted because based on that belief rather than based on retaliation the employer wins it's no different than if you had a any kind of a discrimination case and the employer said we fired this plaintiff for stealing and so you go and you tell the jury in this discrimination case here's how you fight discrimination on the other hand the employer here argues that it fired the plaintiff for stealing if you find that's why the employer fired the plaintiff then you're going to give a verdict for the employer so it's that based on makes all the difference it's not just having and this is where the frost case got out of line i think it one of the places it's not just having the honest belief it's that that's why the employer acted that makes all the differen is what if what if there's more than one contributing factor to the percentage i think that's the problem with construction seventeen because if an employer has an honestly held belief as to one contributing factor but there's evidence of retaliation has to another contributing factor you've got a problem and the jury was allowed to in the plaintiff made that argument and in closing based on the language in sixteen the do in whole or in part language but that question gets to the issue of whether that instruction should said slowly based on or only based on and we and we actually proposed it that way and we would certainly knowledge that would be the the platinum standard for the rule but based on it ordinary parlin which is how we're supposed to think of juries and interpret these instructions that's how they're going to understand that they're going to you know if you tell a juror or for gerson as well i was fired for i was fired based on my employer's attendance policy or are based on something else they're going to understand that  as not was there some other reason and you were really fired only in part for the attendance policy and the rest of it was retaliation and i'll give you another example i saw in the headline this morning on the news that i don't need to tell my plight of the tragedy that led to this but headline that said denver schools closed after threats well we all know that technically something happening after another thing doesn't mean it was caused by but the normal juror you know as opposed to a linguist or a lawyer breaking this down is going to understand the schools are closed because of these threats and it's the same thing with this based on if you tell the jury you know reason is this if you decide that's what i acted so if you decide they acted based on that reason then then they necessarily haven't acted based on retaliation and that's where the armstrong comes in and it makes the point that i'm making that this is just the flip side in armstrong was not that the that what came after the phrase based on had to do with the plaintiffs protected activity it was that the employer had acted based on something other than retaliation and so that's all this i it what it says whether it's an honest belief or whether it's attendance policy or anything else you're going to give judgment to the to the employer how does that fit in with the with the protection argument let's say you have in a classic discrimination case you say i'm out of i'm in a protected class african american i've been fired for coming in wait five times and there's no question there were way five times and there's honest belief that there boy five times but then you say well yes but the white employees were white twenty times he didn't take any discipline against them that's i mean that's what's really happening so how do you this is nothing about the protection of nature of them that excuse two things about that if if the if the evidence is presented of that sort of disparate discipline and that's going to call into question whether that's that policy or that being being light is really why that employer acted so the plan for certainly free to make that type of an argument there wasn't any just disparate discipline evidence in this case and then secondly when we wanted to make this point to about the based on when you know we initially proposed this instruction judge who looked at it he came back with one that copied the armstrong case we had a discussion about it and it was changed up it at the end of it but at at no point did the plaintiffs ever say wait a minute if you're going to give that instruction you need to put the words only or solely in there because otherwise the jury might think that if the employer acted only on only in part on that reason that then the employer gets off so so we have a you know this isn't just a technical waiver to serious waiver and that's why this rule is there because all they had to do was say wait a minute judge we disagree with you given that instruction but if you're going to give it you've at least got to put so we're only there and as to any instruction i'm going to go ahead an object for the record that each instruction is a misstatement of the law and then after the judge gives it i go back and i flyspeck it and i come up with ten different arguments why i think it's a why why i think it's wrong with th point of these objections is not to check something off the list it's to do let the district judge get it right and it would not be appropriate to send this case back because judge who left out a word with nobody told the judge if you just put that word in that would take care one of my why what's wrong with just saying as they did it should be taken out if you find you can't be more specific than that if you find that well i've broken this down the first sentence is the business judgment rule and well we can talk about that but i gather there's much issue with that the second sentence is what's referred to as the honest belief rule or the good faith belief doctrine that comes up in numerous employment discrimination cases and this court has specifically applied it for f r so giving an honest belief instruction his is perfectly acceptable the problems that are being right have to do with the specific wording of it and the wording would be if it said solely based on that that would take care of part of the problem that they've they've complained about but again they never you're supposed to make objections specifically and i grant you if you say you know the honest belief will has no place whatsoever in the f r i say the objection would be would be specific enough because that's what they objected to but you can't say that because it's been applied by four decisions of this court so you have to then say once we're going to give that instruction is there something wrong with the language here and there there was no objection made now this was a long answer to your question about pretax when there was no and there was no objection made to that to the missing word of only or solely that is really what they're there arguing about now they did say we judge if you're going to give that instruction give us a pretext instruction and that's how that pretext instruction ended up in sixteen the judge put that put that language in there specifically because the plaintiffs in the charge conference we want to be able to argue that's not really why be in a sex act they didn't really act based on their their honest belief and so the judge gave them that language and that's the part that  starts with you may find in the in the second paragraph  just one more comment about the instruction itself and and i would encourage the court to you know to take the same approach that the armstrong court took which didn't by the way raise any problem with  court explained when you when you tell a jury if the employer acted based on something else you're necessarily contrasting that with the plaintiff's theory of retaliation and here we've got even more because we don't look at these instructions one by one and focus in on that that one line we do look at them as a whole and sixteen clearly said due in whole or in part to his protected activity so the plaintiff has the the issue of whether the instructions were confusing and the burdens and so forth and we set out that the the way the verdict rector was done is is how we understood this court to instruct that it be done but i want to point the court  instruction ninety instruction nineteen i doubt i will say i think this comes through in sixteen seventeen eighteen but even if it did instruction one thousand very clearly tells the jury that instruction sixteen seventeen are part of the part of played if it were black or obese klein that that goes to the elements of his claim and then it says that instruction eighteen is the defense the go that's been assess and the instruction eighteen itself has the clear and convincing evidence so when you put all that together you've got to do in whole or in part find retaliation on the flipside if you find the railroad acted based on dishonest belief fine for the railroad then you have the defense and then you have nineteen that sums it all up by reminding the jury who has the burden to show what reason and i gather from some of the arguments on the other side that their position is that the honest belief rules not of the fence because the reason the employer acted is not a defense and that used to be the way that the administrative review board interpreted these cases they would say we don't consider the employers reason for acting as part of the plaintiff's unofficial burden they changed and more importantly this court adopted the requirement in the gundersen case that consideration of the employer's legitimate nondiscriminatory reason is part of the plaintiff's case and that's why this honestly parole which is just presenting the jury with the employer's legitimate nondiscriminatory reason as an alternative to retaliation is an appropriate instruction as part of the plaintiff's case if they acted because of reason x anything other than retaliation that's what matters whether it's whether it's eye color or hair color attendance policy or belief of a policy violation if that's when they acted there's no retaliation which is what armstrong said not the frost case it came up it frankly got wrong most of what i just said but it's important to remember too that this poor unlike the ninth circuit has squarely adopted the honest belief rule as i said and it also said in that opinion that it disagreed with the decisions of the score and the seventh circuit so for that reason alone i don't think we would want to place too much weight onto the ninth circuit decision here and then when the court was talking about the based on didn't raise any discussion about the specific objections issue that i raised but also they didn't look at the instructions as a whole they focused laser like in on bad instruction and as i just walk through you know if you only look at that one sentence than than certainly you know i would understand the argument but it's not that one senate says that one sentence is part of the set of instructions that has a clear  about what it takes to prove retaliation and sixteen and then the the employer's position the flip side and seventeen and then as i said in one thousand puts it all together the but i think the only other point that i wanted to cover it briefly is as i understand it there's an objection to the wording of the second paragraph in instruction sixty about where the phrase intentionally retaliated was place and we've  this in our brief and i'll just repeat it here briefly if that that language tracks the language in this court's opinion in the first case the court said under a jury must find intentional retaliation prompted prompted at least in part by the protected activity and so that's that's tracking i mean not work for war but each concept is in the same order as it is in this instruction so there could not be any problem with this instruction so i'll just come to a close here by by saying that you know this court has numerous opinions where if the sizes that you look at the instructions as a whole and when you look at these instructions of the whole this case it was fairly presented to the jury plan of had the ability and did argue under sixteen that showing any amount of retaliation was sufficient to prevail judge who instructed the jury based on a case from the seventh circuit they used for the material part the identical language and mr blacker be you know as we've heard is this case is seven years mr blecher be received as your honor pointed out the beginning is he wasn't fired he received a centrally a probation that was removed and by the way the reason it wasn't removed the record shows earlier than the lawsuit being filed is because the union reported that they did not want to remove it just yet because mr black and we might be following a lawsuit and that's why the timing of it was such that it wasn't moved until after the lawsuit was filed and we've been back once the instruction here is a no white like the instruction that the court reversed on in the beginning where there was a direct instruction poncho every to what this court had said and to duck this is an instruction that and there was no other instructions they could get around that in the first case this is one that is at least in the good enough category as seven circuit said it wasn't personally worded but it was it was sufficient and when you combine that with the other instructions it is more than sufficient under this quirk's numerous cases on jury instructions to uphold the judgment you know and again alert you to look and judge who's explanation for all of that in his and here i was worried i was he's on my time i'll just make a couple quick points certainly from our perspective we don't believe an honest belief business judgment rule instruction should have been given at all but for the sake of argument let's say that the court find that they should be given enough r s a case there's two things to point out from the charge conference in that district court stated the reason it was going to give these instructions the honest belief and business judgment rule was based on the armstrong case and based on walker which is from this circuit now again armstrong applied that instruction only as to whether plaintiff in engaged in protected activity so as that was not an issue in this case as an improper reliance on armstrong and it was an improper to bring that instruction of the case the other thing is that in water this court made very clear that while an employer has the right to make business decisions for example in walker they said to assign work to change an employee's duties to refuse to assign a particular job and to just charge the water court stated an employer can do this for good reason bad reason or no reason absent this is important intentional age discrimination and that's what was the piece that was the piece that was missing from this instruction there was no direction to the jury to consider how the conduct of being s f applied to the law they were simply given a complete out if the jury found that being s f believe that mr black to be violated this rule unless there's any questions