good morning please the court chris mary i'm here on behalf of the protect this court knows this case is about whether catch can terminated the employment of tanner scenes on august eighth two thousand and fourteen because it was motivated by a retaliatory and of us resulting from his participation in a work stoppage eleven days earlier on july twenty eight and the standard of review is only substantial evidence is that right that's correct your honor pretty steep standard for you it is your honor in the case this is the issue that this case presents for this court on appeal is whether the a l j in finding that catch can had been motivated by a discriminatory animus based that decision on evidence and whether it was a reasonable inference from circumstantial evidence or whether it was a speculative leap without support from the evidence in this case the l g a did cross the line from inference to speculation and you criticize the ale judges reliance on the fact that ramsey said he couldn't remember  that particular comment about it don't mean shit isn't that the type of thing that fact finders juries judges who are sitting is the fact finder makes every day when they say oh boy that really seemed important the fact he doesn't remember that must mean he's not be truthful what's improper about certainly are the first of all in the context that decision itself by the ale j was based on speculation the evidence in support of his finding was extremely weak it was based solely on testimony from two or three hostile witnesses that his face turned red when mr scenes said that to him that's extreme there's no admission from mr ramsey that he was angry there's no evidence in the record that he ever engaged in any conduct after that event to suggest that they harbored some anger or resentment about that so that finding he he might have been mad about it yes your honor and as we point out there are briefs of mr ramsey's testimony on that point was highly plausible in the circumstances  under the circumstances this was a one day work stoppage and i think it's important to point that out that this was not an ongoing long term conflict between the employees and in the ceramic see it was a one day event  it was major it was a permit major proposed change and it was resolved fairly quickly here on the employees actually got fairly quickly much of what they demanded in response to that proposed change and there's no evidence in the record that mr ramsey had any special investment in that change in the terms of the employment it was a directive that came down from those above him he delivered the message but there's no suggestion that he had a personal investment in that chain and as i mentioned the actually responded fairly quickly that morning that they would not continue to work unless at least they got their seven day on seven day off schedule back which was given to them fairly quickly  suggested here the question here for this court especially given the standard of review it is whether the a l j in making the final decision that the terminations on august eighth has some causal relation to the activity on evidence that would support this inference however none of those six means of circumstantially showing some retaliatory and of us supports the l d s decision first the board noted the evidence that the employer had knowledge of the protected activity and hostility towards it could support a finding but that is merely a necessary condition for finding causation it's not sufficient in itself second the board notes the timing of the discipline following obviously the protected activity could support an inference but here is i pointed out the this was not the timing although it's only eleven days  in that in the in the circumstances it was actually a long time because there was as i mentioned earlier no evidence that this was a long ongoing simmering conflict between employees and mr mr ramsey third the board suggests that evidence of disparate treatment or discipline that deviates from the employer's past practices could be circumstantial evidence supporting causation finding or showing a retaliatory animus here there's absolutely no evidence in the record there was any type of similarly situated employee to mr scenes who engaged in similar conduct in the past and been treated differently there's simply no evidence that any pull employee had ever been in that same situation before prior to that point in fact the is was asked to go to kenya in december of twenty fourteen and he refused on the eve of the assignment and he was terminated his employment was terminated was significant about that is that mr canalis was a supervisory employee he participated on july twenty eighth and the work stoppage issue on behalf of catch can so there's there's no suggestion that he could even be covered by the n r a now there were some other circumstances related to or his employment just want to point that out that there was the issue about whether or not he would be able to kid to new work in the united states because he lost his driver's license but he is the only employee in the entire record he's even close to similarly situated to mr seems and it shows that he was treated in the same way when you back out of the kenya assignment fourth the board points out that if the employer relies on pretextual justification second support an inference of retaliatory animists this argument is somewhat circular to the extent that it assumes that the reasons given by cash can were protection or but here the a l j relied heavily on what he called the lack of prejudice to catch can from mr seems refusing to go to saudi arabia and taking the saudi arabian assignment he pointed out that ultimately the employees who did go to saudi arabia didn't go for several weeks to canada for their training they ultimately only sent one employee to saudi arabia the following year in february but that's all with the benefit of hindsight certainly afterward you could say well mr seems refusal on august eighth to go to to acknowledge that he was still on board with this assignment didn't cause any prejudice when we look back at it but at the time from the perspective of catch can it it's perspective needs to be what is viewed as reasonable here catch can as we point out in the record was on the verge of a potential large new relationship with around co the largest oil producer in the world it was totally aramco schedule it needed to have a team that was ready to go it needs to know that it could rely on that team went around co finally gave the direction to go forward from that perspective catch cancer and mr ramsey's in particular conduct in holding the people he thought were on his team to their commitment to be ready to go is entirely reasonable and plausible and it's certainly not protection will on its face to inconsistency between the employer's offer of proffered reasons for its action and other actions of that employer here in fact mr ramsey's actions as found by the l g himself were consistent throughout both before and after the work stoppage with his belief that mister mr seams had committed to go to saudi arabia mr seems testified himself that on july sixteenth  mr ramsey first came to him and told him he had been selected for the assignment that's over twelve days before the work stoppage the record also shows that on july seventeenth mr ramsey sent an e mail to the human h r department saying this is my team they're committed to go and that listed mr seems it also gave the direction we need to start hiring people to replace these folks i could anticipate losing them in two three weeks again that all happened before the work stoppage and it's entirely consistent with mr ramsey's believe that mr scenes was committed to this assignment and the evidence also showed and was found by the l j that catch can did begin rehire hiring or put in recruiting and hi replacement workers for the people that it believes are going to saudi arabia all of that is consistent with mr ramsey's believe that mr seems was committed to going on the other hand the l j focused almost entirely on mr seems testimony that his commitment to this had always been equivocal that he was uncertain whether it was going but even as recounted by the a l j mr seems always said yes i'm going but i want more information yes i'm going by like more information about the scheduling yes i'm going by like more information about the wages and in addition his own conduct was consistent with his commitment he did go get the passport  never gave a definitive answer that he was not going to saudi arabia prior to july twenty eighth now at the end of the day perhaps there was some miscommunication between mr ramsey mr seems maybe they were talking past one another maybe mr ramsey was attempting to strong arm mr seams into going on this trip to saudi arabia but there's still no evidence despite even of their apparent miscommunications with one another that significant that mr scenes on july twenty eighth was only one of about ten or so employees who engaged in the works of it there's not evidence that mr seems did anything to stand out as a leader there's no evidence that he himself even refused to work assignment the only person who's really identified as a leader of that work stoppage is another employee named john borrow he's the one who everyone acknowledges refused take to take work assignments that morning  due to the proposed changes in the employee's terms of employment there's no evidence that any of the other employees who participated on july twenty eighth suffered any sort of retaliate in retaliation in addition all mr seems needed to do to save his job on august eighth was to say yes i'll follow through on my commitment if this was just an elaborate scheme on behalf of mr ramsey to find some pretext for a reason to get rid of mr seems it would make sense to put all of the power in mr seems to defeat that scheme all he had to do was say yes and now with the benefit of hindsight from from this perspective mr seems apparently wouldn't even have been required to go to saudi arabia as the evidence shows ultimately only one employee did in february twenty fifth team so all mr seems news or do was say yes he could have saved his job and may not have even had to go to saudi arabia so at the end of the day the board in the ale does not offer any evidence the next mr seems terminations on august eighth with his conduct on july and please the court good morning honors michael i mean on behalf of the board seeking full enforcement of its order i like to begin by correcting the factual point in the record i'm opposing counsel stated that mr simms clearly stated that yes he was willing to go on the trip to saudi arabia prior to the work stoppage but that he just wanted more information that's simply not accurate repeatedly mr sands told superintendent ramsay and general manager norman todd that he was continuing to think about the trip and that he wanted more information before he agreed to go that occurs on july eleventh july twenty first when he first told he needs to get his passport he agrees to go again just states that he's getting his passport and in fact i would submit on july twenty second is really when he's firmly saying that he's not going to go he tells mr todd i don't think would be a good idea for me to go and then leaves a message with mr todd secretary later that night saying he didn't think he was going to do it meaning the trip and then similarly on july twenty eighth which is the day of the work  stoppage following the stoppage itself mr ramsey says to mr simms i want to send you on this trip to saudi arabia because i think it would help you out given these new changes with the wage decrease it would help you  go on the trip and again mr ramsey says all right but i'm still not sure that i want to go and in fact mr ramsey has asked at trial prior to when mr simms backed out did you ever indicated to him in any way that it was mandatory that he go on the trip to saudi arabia and mr randi's answer was i don't believe i did that's page one thirty eight of the record the in regards more specifically to the passport it again was something that mr sims was very clear about when he was told to get the passport was that this was not an indication that he was going on the trip or green to go on the trip go it was simply not a reasonable belief for catch can to believe that this was mr simms putting himself out there and green to go on the trip when he had repeatedly said he was not going to go or had still  needed to think about going on the trip it was mentioned also about opposing counsel about mr barrows and if anyone was going to be retaliated against why would it not be mr barrows because he was also involved in this work stoppage was a very vocal leader in the work stoppage i would point to a few facts as a political matter though as this court recognizes neighbors the fact that an employer doesn't fire everyone who's engaged in protected concerted activity doesn't mean that it doesn't violate the act when it does fire one of the employees who engaged in a protected event but more to the point it's very clear from the record and from what the credit in it that mr simms participated in this work stoppage in a unique way compared to the of this he's the one as a subordinate who curses at his supervisor statement was made and that mr ramsey was visibly anger after the statement was furthermore as to why mr barrows might have not been fired the fact of the matter is mr barrows had already been told prior to the work stoppage that he wasn't going to saudi arabia that he wasn't part of the team that was going or as mr simms had been selected preliminarily subject to his agreement to go on the trip and so  it would have been all the more clear of catch cans animosity to the employees who engage in the stoppage had they gone out of the way to fire mr burroughs it's really just a matter of convenience for mr ramsey that he can try and point to mr simms engaging in this negotiation at the time of the work stoppage to go to saudi arabia and then use it as a pretext for firing mr sims but again as we point out in our brief the credit evidence simply does not establish that mr sims had ever agreed to go on the trip additionally opposing counsel referenced the argument that catch can was behaving date that mr sims e mail was catch and puts in no uncertain terms that he will not agree to go on the trip to saudi arabia catch him then waits for days and does nothing they don't they don't bring him into the office they don't pock to him they don't try to encourage him that he should go on the trip they do nothing for four days until august eighth which is the day that they give him the ultimatum to go and then after august eighth ramsey is asked well how difficult was it for you to find a replacement for mr simms to go on the trip after he backed out and ramsey says it wasn't difficult at all he found somebody within a few days to take his place and so this  wasn't a business just a business reason to fire mr sims because catch karen was going to be embarrassed in front of this new client they were able to find a replacement and they were able to please the client and have somebody ready to go on august eleventh to canada for training which is the next step in process and lasting no mention if the court has no further questions is catch karen also had work for mr sims in texas that was testified to by mr ramsey at page one forty nine of the record they had a job for mr simms in texas they didn't have to fire him they could've left him at his current work station and they had work for me to do they were still busy at the time for the board mentions the august fourth e mail from mr seems to ramsey stating that he no longer wants to go and that is an important e mail he doesn't include a statement from mr seems th he's sorry i can no longer go that e mails an admission that at least up to that point mr seem certainly understood why i catch him and would assume that he would been committed he essentially mits and i'm now telling you i'm no longer going and i'm sorry for the inconvenience and why didn't mr why didn't mr ramsey act immediately on august fourth to find a replacement or to go to mr seems and tell him this is an ultimatum you got to accept  there's not evidence in the record on that point and mr ramsey by the point by the time the ael j conducted the hearing in this case had already been fired by catch can he was not a friendly witness to catch him if he had it if he had any desire to throw catch can under the bus he easily could have done so and there's not evidence in the record why didn't he act on august fourth to find a replacement maybe he didn't read the e mail maybe he was procrastinating again that's just speculation but what the record does show is that on august eighth he was contacted by nolan todd and said you need to have your people ready to go on monday to canada and mr ramsey called the people who are he had identified as being on his team and told them they needed to be ready to go and at that point mr seems directly told mr ramsey i'm not going and at that point there were additional conversations and ultimately by later that day mr ramsey told him you're going to be fired or you are fired for refusing to take this assignment the board points out that there was work available for mr scenes in texas that could be that point could be made with respect to any employee who's discharged for insubordination or refusing to follow an assignment that doesn't show pretext certainly many employees who are terminated for not following the directions of their employer might be able to continue to do work for that employer so that alone doesn't show pretax and catch can had an interest in the holding people that it felt had committed to taking this international  to their commitments i suppose probably from the similar perspective of general deterrence catch can very plausible it could have wanted to communicate to others that it believes they communicate had agreed to take these assignments that they couldn't back out on the day before which would possibly potentially from catch cancer perspective jeopardize a potentially lucrative operation for a large potential customer  the board are used that mr seems participated in some unique way respectfully some of the the elegies own findings do not support that the only thing distinctive about mr seems conduct was that he did finally use profanity in asking for an agreement to be placed in writing when the employee's work terms were changed back but even the a l j constantly throughout his fact finding uses the terms of day multiple he uses plural to refer to the employees that morning and throughout his description of what happened on the morning on the day of july twenty eighth the mr seems is not someone not doing anything on that day to stand out as a leader of this of this organization poise objecting to the change in their to work terms and finally even even if mr ramsey was visibly agitated on the morning of or the afternoon of july twenty eighth when his word was challenged even then that is requires a speculative leave as to why maybe he was agitated because he thought that the they had resolved the issue maybe he was agitated because he was ready to go to lunch and he didn't want to have to go back and make a yet another call that day even that requires speculation and it's a far leap from the look on his face on july twenty eighth concluding that twelve days later or eleven or twelve days later he fired one out of a group of