issue on which they should have been submitted to the jury on the do you fair representation case as we pointed out in the referral reiterate again that mr brady is claimed to have no knowledge of on summary judgment motion he had no trouble correct so that is now was the case with regard to mr olson crack that is one except of course for the war sixty motion which was of course based on new evidence following the summary judgment motion filed as the clock begin to run do we look summarily distance that saying all that case involved an industrial injury what we didn't know what now in the dirty district court took the position that mr curtis was raising that distinction then in kind of connection of the time the summary judgment i don't believe that's quite accurate what he was doing was simply dismissing whatever evidence my client proffered the significant fact however that came out at the sub that we offered it subsequently as one when he claimed no knowledge of any prior cases in his declaration of summary judgment he didn't claim i had knew of cases but there were also an industrial injury so the issue there is concealment of that fact which goes to show falsity which in turn leads in the evidence from the subsequent joint panel where he mr frey has made these statements the alleged distinction between industrial non industrial injuries erosion histories of current the letters which occurred after the distinct that after the information at the time that he was handling my client's grievance and other words he couldn't have been a basis for this distinction at the time he was handling my grievance because this distinction or argue now whether industrial nondestructive should apply arose in correspondence afterwards let me go back to the questions that i can actually get more clearly we review the denial for abuse of discretion do we know that is correct and we are we have what i think is a factual finding by the district judge and ruling on your motion that this new evidence would not have made a difference because of the distinction that you are quarrelling with the question i have for you is don't we have to accept that fact unless we conclude that it was clearly erroneous no longer in applying the abuse of discretion standard to the court's ruling on the snow which no you are because the court we didn't ask questions and discovery and there's no mr frey just again made the statement we don't know we didn't pursue it up with questions to yes and they said we don't know you know who was on leave of absence who wasn't so to the extent that the court was thinking that we could have pursued this in some fashion the statement we just don't know who is on or off is essentially a roadblock any type of information on the second point however it's seems to me in terms of the trial that we have no independent knowledge of what occurs and what mr brady's may say you know the proceedings and other times that we don't get knowledge we discovered this information shortly after six months of the summary judgment ruling and raised it to the court in a timely manner after six months of securing the six months we learned out after that raised it within a year so i don't believe that we could have known anything about what mr fraser knew about other cases until we had the admission by mr fraiche that he knew we didn't have that mission until long after the summary judgment hearing was held or another which mr freights admission that he knew about other cases contradicted his statement that he didn't he didn't make that admission till six months after the summary judgment motion was there freights action would have been it would have been like could have been just any other reason to dismiss the case you know the guy's got curly hair you know there would be no reason for my client to think from that brief comment that he was articulating a policy of the would either pay or investigation or analysis a summary judgment and then make that assertion that summary judgment either that they were making a principled distinction between industrial non industrial cases and as we pointed out in our brief that the contract itself does not make such a distinction in terms of the ability to go back to work had they made such a distinction and made such an argument our position would be that it's not in the contract making such a distinction as it is arbitrary i mean it's like saying you don't you're not entitled t contract rights because we have a distinction that's extra extra contractual that would be our point showing the stake of going with the first arina first and we using up time too much time on the jury instructions on the trial brief or difficulty in summary is that the court basically and the district court basically repeated the same errors in connection with the jury instructions that the district court made in terms of the prior deal as you recall the summary judgment was granted on the theory that we can show decision maker knowledge then the t instructions she also failed to instruct the jury on the elements that we could use to prove this woman the case with me for being killer to this case she declined to instruct the jury on the various factors relied on the part handle which would we could have used to support our case so basically we had additional instructions imposing a burden of proof on us that we believe the prior parent rejected the district court's instruction on the motivating factor  we've clarified saying so therefore reliance on st mary's isn't completely accurate to that you know ordered to give a correct instruction on that one would have had to instruct both if you want to use the language from st mary's you also had to include the language from to the jury but what the jury is taught that's the key on the structures of the court as well where on the second point i believe that the discussions by this court in casting overseas run will count chemicals discuss the danger of an instruction like the judge gave here on pretext revised precisely because of the confusion that we are that the confusion that we're raising in those in the commons and that they noticed they noted that the instructor in the mcdonnell douglas test have been criticized by this court as well as others because of its confusing factors and the confusing factor on the pretext element is what we've pointed out namely that the instruction in the language of st mary's is confusing without the gloss placed on it by reeves because what it does is it suggests that as court noted i think in this scene i think i've got that right so yes we have to prove two things but we really only need to prove one or at least of course new instructions and much more global and better process now seems to me that once you take that step down the inference road then it seems to me and he isn't a question does the court have to give an inference instruction rather it's the question this is the instructions are given by the court clear to the jury in terms of what it has to follow and what prove the point it has to make and here because of the failure to give the additional clarification as we requested it was not clear to the jury and suggested to the jury that we had to prove other things and as we know in our brief giving the jury instructions on business judgment as well as deference to the joint panel decision all added to that element of confusion as well as absence involving industrial injuries and those which are not industrial injuries was first really used and discussed during the preparation of the union and mr alston or the panel hearing where his discharge because contract language is very clear it makes no distinction that if you overstay your leave of absence you're in trouble you can be hired the union had taken the position attack could not be applied  that rigid way with respect to industrial injuries because of the california records compensation law that's discussed might agree there was no suggestion that it could not be applied as it was by the company in this case two individuals who did not have industrial injuries but nevertheless overstate your case so mr olson was in the position of having to say well it nevertheless should not apply to me because it has not applied to others in my position is discrimination that was had to be an argument and the union accepted that and the union mr olson tried to point cases that was the point that they found one which was case that was resolved by the jury was whether retaliation was a motivating factor in the adversary action that occurred in this case and the jury in the special verdict form held precisely that in their opinion based on all of the evidence that they heard and they heard a considerable amount of evidence i think there's any doubt that the plaintiff was allowed to produce all of the evidence that the this court on the first appeal stated was permitted and he did so he argued from that evidence when the jury was not permissible entrances may be drawn from the evidence is in the st mary's case the model instruction that was promulgated by this court followed st mary's and didn't include that instruction i think precisely for some of the reasons that this court may have discussed in their questions which is that inference was a legal analysis of sufficiency of the evidence following a jury verdict as to what her what evidence could support a jury verdict it was not and it was not a statement on the burden of proof at trial and the plaintiff i mean the excusing the appellant as stated in the brief and again an argument today that the instruction that was given eroni asli required him to prove two things when only one thing was required a fair reading of st mary's in reeves makes it crystal clear that you have to prove both things you can prove the second part of it by influential evidence that's merely a statement of a rule of evidence not a burden of proof instruction that's why it's not in the model instructions and that it's not error for the court to have declined it there are a number of inferences that can be drawn from evidence in the case and they're typically not the subject of jury instructions but rather argument and then they're tested at the end if one side comes before you and suggest that the evidence was insufficient to support the verdict so i don't believe that argument applies here the question is did the court erroneous only state the law on only one the thing these to be proven that is the falsity of the explanation without the jury also concluding that that the motivation was retaliation in this case i received repeats that when it says that it is not enough for the jury to di would have been the sleeping because it wouldn't have included that comment that i just made that it is not enough just to disbelieve so even the even the proposal that was made by the pallant we think would not have been a correct statement of either reeves or st mary's and the court it struck on the burden of proof and correctly did so that's not an abuse of discretion to add additional language about inferences that can be drawn from the evidence i think that would have unfairly directed the jury in a way that may itself  years another comment that was made was that the court didn't follow the this court's opinion in the in the earlier appeal and it and i will say your honors that that miss perceives that the burdens that are required summary judgment versus the burdens that are required at trial and one of the cases i don't think it's been cited previously but it was in the model jury instruction comments that were submitted just now just recently and it's the saying the decision at three twenty  third or five thirty two at five thirty six where the court makes it clear it would have been error for the court to instruct the jury that the private facia case had been established at the summary judgment stage because the court makes it clear in that opinion that the plaintiff burden at summary judgment is merely a burden of production it's not a burden of proof and that's the fundamental distinction at trial there is no longer a burden of production there is a greater burden for the plaintiff he must show he has a burden of proof and that's how the jury was instructed on the causation element as it relates to the retaliation claim the again the instruction on causation was eight accurate statement of the law of this circuit which really the appellant hasn't addressed the fact that circumstantial evidence may be brought to bear to show the knowledge of the decision maker and to make the causal link that cullen requires is exactly what the pla was permitted to do hernandez makes it clear that simply because you have circumstantial evidence doesn't negate the requirement that ultimately you have the burden as an element of the retaliation claim to show the causal connection an element of the retaliation claim not of the facts but an element of the claim itself and so the fact that you can bring circumstantial evidence and ask the jury to infer that knowledge from that circumstantial evidence it doesn't represent anything other than the same kind of decision that this court made in the hernandez case the suggestion that the court previously negated the knowledge of the decision maker doesn't find any basis in the record the court didn't directly address that issue as it has been addressed by this court in rat and hernandez and any and even in the cone case which this court cited in the earlier appeal and judge fletcher who wrote the opinion in the ad case was on the panel in this case so we have to assume that she was speaking consistently in both cases and that's that's the way that you can and analyze the court's decision on the first appeal and reconcile it with the jury instruction in this case  the other the other side errors in this case particularly the evidentiary errors we think are a puzzling plaintiff's objects to some instruction on a panel decision but it was the plaintiff who put the panel decision into evidence in the first place he objects to the medical evidence that was permitted even though he he produced the medical evidence in his case in chief and opened the door and made that an issue in the proceeding so these other evidence rejections your honor we don't think our our with there's certainly no basis for a claim of the air the same is true of the motivating factor as we pointed out in our in our brief then and it's been reaffirmed by the new model instructions of the of this court a motivating factor which used the phrase that the court used is the phrase used by this court repeatedly is the correct standard it's in the model instructions it's the instruction that was used in saying it's the instruction that this court approved in costa o excuse me was that the standard of proof that this court approved in costa it is a correct statement of the law and it is the jury that found that it was not a game that retaliation was not a motivating factor not the motivating factor and so there is no error there's no clue but realistic claim here that the jury could have been misled somehow into believing they had to find that retaliation was the sole reason nobody argued that to the jury the jury instructions don't lend itself to that reading and under that standard there's been no abuse of discretion by the court and with respect to no review on the issue of causation i think the case law supports that instruction the facts of the case made it an appropriate instruction in this case and that nothing that the district court did get a disservice to this court's decision in the first appeal those are the points i wanted to make i be happy to answer any questions context and that case they were looking only at whether or not the facts are sufficient to support a just support a summary judgment against the against the defendant i think that's a different question and imposing a burden of proof at trial because when the jury when the judge and bark on and giving this instruction for the reasons noted in the gordon case what they were but she was basically doing was taking an issue that should have been just part of the overall argument to the jury and transferring it into a burden of proof that had not been required of us on the prior appeal the prior appeal was not saying anything about our obligation to prove as part of our prima facia case anything about knowledge that rather sets forward other things that we can use and we've course in response to the instruction on decision maker knowledge requested that those factors be diggers be advised of those factors is going to be consistent with the prior case we didn't get that part of that you are now down the road and you need to make a full and correct instruction it's not sufficient to leave that argument to just leave it to argument because the problem isn't what the parties will argue but what the jury looks at and how does the jury assess the evidence and the danger is when you instruct you do instruct in this instruction on pretext two things are three and it is clearly there and the jury as i think we are we argued before is that is confusing to the jury if you want to and i think that's why the court has moved to a broader series of instructions in its current one in terms of the motivating factor i was just noticed note that the instruction actually given by the judge was not limited the motivating factor included both motivating factor and that meaning and then clarified that by saying that means it but for causation to note the current jury instructions the more roger instructions know that those are essentially two different tests and while the motivating factor standing alone might not require an additional gloss the new instructions are clear that the but work standard does require the gloss of but four does not mean the only reason so that i don't think that they just had the u p s s arguments here are premised on the idea that judge gave only the motivating factor instruction but she didn't she combine the two finally on the one argument that the union made in terms of that unions always made a distinction between industrial injuries which are not on a one and non i apologize i thought i would have i would just refer to the fact that mr furze was decoration it's just like the highway patrol when the red light comes he was stuck thank you your