s there is a need for caution about granting summary judgment to an employer in a discrimination case where the merits turn on a dispute as to the employer's intent in this case the district court specifically conflated some of the factual issues and and we reasonableness on a number of the other facts in fact we have here a general foreman who at one point in an affidavit or a statement testifies that the ground conditions were safe but then the employees who were there and talked to him before they were about to be sent out he's told them they did a job safety briefing and he told them the conditions were terrible and invariably the witnesses said that the ground conditions were icy hazardous treacherous and yet this employee meaning mr tompkins was found to have been objectively on reasonable in his belief that it was an unsafe condition you can have unsafe and you could have i c let's say those facts are contested but don't you have to then show what that there's a factual dispute as to whether or a reasonable individual would conclude that it's an imminent danger of death or serious injury and that seems for instance there's not dispute it might be just me on some of the conditions in my facts in the record that suggest i see but not so beat that level of the standard so i believe number one to make that determination is a factual determination what what judge atkins decision essentially did was say there is no reasonable jury on the face of this earth who could find that walking approximate mile and a half to two miles at night in an active rail yard with icy conditions below thirty degrees presented a potential for imminent serious injury arguably frankly because of the nature of the act of railyard meaning unprotected tracks and the fact that there is no path to get that three quarters a mile up and three quarters a mile back there is no path there would have to cross tracks in order to do it there actually is imminent potential for for death but frankly we don't have to go that far we look at serious injury candidly much of my caseload is replete with cases of serious injury premised specifically and slipping falls on ice so i don't believe by any means that a jury should be the role of the jury should be usurped by saying that it's impossible for a jury to find it reasonable and we have as witnesses as well the other two witnesses i mean mr stooping was a probationary employee who specifically said he was afraid to open his mouth because of reprisal he went along with what we know that those two employees did right after they left the st thing they did was miller said you were crazy get my car and they drove walked hundreds of times in the past when condition conditions were safe to do so what mr miller ended up saying was st off lewis turned to them right after thompkins was dismissed from the room and said it's very terrible outside picks up the foreman to bring him back and what do all three of them do slip on ice so if you want the objective proof of proof of reasonableness all three of them slipped we have actual facts proving exactly what  whether you might slip the standard is whether there's imminent danger of serious injury to me what you're suggesting is that carmen can refuse to walk any time it's cold out there might not your scent no and if it was just a function of cold out no issue whatsoever what we had here was on the record does contain this is we had melted snow and ice throughout the conditions we also know that they are supposed to provide transportation to and from and didn't we know that the very vehicles that they were supposed to be able to use were broken down for several weeks on the vehicles are available to avoid the very conditions you're on is talking about or are asking about but what we had here was a failure to provide those very vehicles meaning they could either call them questions or gators or whatever and what we ended up with is mr thompson's having already been told he's not allowed to use his personal vehicle essential what we got was miller engaging in self help in order to get around what he just saw happen to show and tell us that can't possibly be what we're encouraging let me ask it agree that walking to the wheelchair that night was not unsafe is your position that's the wrong analysis or that factually the record doesn't support that conclusion i don't you both and i would say that but the easiest handedly is the nd which is the factual record just doesn't support it so where does the record show that every that another individual to evaluate the situation concluded that there was  not that it was cold but that it was unsafe to the point of imminent risk of serious injury no one stood there and said there is imminent risk of serious injury we don't typically speak that way what we do know is that the general foreman said it's very terrible outside to the witness to the to the employees that were left behind after tomkins and dismissed we know that miller in his deposition said that everything was frozen it was well into the darkness walking in the dark it was treacherous now i don't know you are if what we're doing relying on is a witness must say  standard was met imminent risk of physical serious physical harm but that wasn't put to any of these witnesses right now and that phrasing however it's terrible outside it was treacherous you're saying is  with the standard which is the relevant one imminent danger of serious injury but what i mean death i'm sorry not to you i'm saying that a jury can certainly infer that that is synonymous my definition doesn't really matter it's whether or not a jury could find that that is the reasonable take away from that terminology and from the fact that the foreman himself indeed fell or or slipped i'm sorry all three of them slip that i don't think  morning your honour's made it please the court john hopkins did not want to walk to the real true on january th two thousand and fourteen he thought it would set a bad precedent he just refused to go the two other coworkers on his gang agreed to go  supervisors assess the situation and they agreed it was reasonable to ask these men to go home one of them actually walked up to the real truth himself later that night sean tomkins just refused to go that was insubordination it was not protected activity that i could be interpreted in a number of ways it could be bad precedent because they're asking us to do things that pose a serious risk of imminent danger or serious injury you're saying  bad precedent for some other reason i think that's what you're implying there was another foreman who was present that night and he he was not a person who worked with this gang he happened to be sitting in the room where the situation with this discussion took place and his in his written statement he wrote carmen thompkins told and miller that if we do this imprint the seas walk to real true we would be doing it all the time he didn't want to be told he had to walk to the real true instead of being able to do his preference which was to drive in his car or in the company car to get there it would take him twenty minutes it was cold outside it was dark outside he didn't want to go and i think that the best evidence that i found in the record of whether it was objective  dangerous to go and we have a lot of objective evidence of what everyone else thought that night michael miller who was one of the coworkers of john tompkins in his statement to his contemporaneous written statement he wrote we were to walk on that night it was below freezing somewhere in the mid to low twenty's all the snow from the day before melted during the day and was now a sheet of ice great meeting great blue was the foreman the general foreman i'm sorry greg at this point s i know your answer and he looked at me and asked if i would go to real true after a moment of thinking about it i said yes then henry was asked and he said yes mr miller who is in the same position as mr tomkins with the same training the same experience acknowledges he knew what the conditions were that night he was asked to go he thought about it he assessed the situation and he determined it was reasonable for him to be asked to go and yes he then did go to his personal vehicle because that was his preference it's easier it's faster it's warmer to driving your personal car the three quarters of a mile and he was not punished for doing that actually the evidence is that the foreman that night  back with the men in their personal vehicle they were never punished for that again it was a personal preference it's easier to drive it's warmer they they prefer that and so that was just in the record that tomkins doesn't have that option available to him because the company cars don't work and he's been told he may not use his personal vehicle at least for summary judgment purposes we should assume things are true right yeah i agree this was an unusual situation usually there were company vehicles available other options he never asked whether he could take a personal vehicle that night given the unusual circumstances he also could he could have walked on the i suppose the icy path that nobody else had traversed and discovered to be icy at that point he also could have walked three quarters of a mile and there's an option where you can walk for a portion of it inside other buildings so there were two henschel the three different options available to him instead of discussing these with his with his supervisors and finding a safe alternative he just said he wouldn't go that can't that can't be the standard here the railroad shut down if every time it's cold out or potentially now if it's hot and humid and you think it's too hot to walk over there you can just say i'm not going to go there was no way for him to do this work where he was in the building that he was there and he had to get there somebody had to get there to put this piece of equipment back onto the train so that the train to keep running there if its employees are allowed to by using the word safety or railroad will just shut down there has to be a different standard that's in play and the standard is that when a one employee refuses to work you look at whether their refusal to work was subjectively reasonable and also whether it was objectively reasonable and i think that judge i can looked at the objective evidence and nathan you asked a question earlier about whether the phrase the judge i can vote in his opinion about what the other individuals that night looked at was that the correct legal standard and i think that is because when you look at objective reasonable notice the question is what does a reasonable person with the same training and experience as the plaintive believe to be here in the claim can't prevail i mean it seems to move from a sort of generalized objective standard and here i think whether they're contested facts as to the level of dangerousness and the like to that being resolved because the other individuals on the scene didn't come to the same conclusion or decided not to refuse the order despite a same the same conclusion the the plaintiff can't be the arbiter of what is ultimately objectively reasonable there has to be some other person that gets to make this determination otherwise the plaintiff of course will say it wasn't reasonable to ask me to go it was too dangerous and that would that would just take the meat out of the statute which says the reason this is now in be too big be a refusal is protected under paragraph one b and c if the refusal is made in good faith and no reasonable alternative to the refusal is available to the employee and  reasonable individual in the circumstances then confronting the employee would conclude that the hazardous condition presents an imminent danger of death or serious injury the question is not what the plaintiffs believe for this particular part of the standard it's what a reasonable person in the same situation would have believed and so judge i cannot and then the question is is it enough to say everybody else on sight made a different judgment is that is their authority for that being the appropriate analytical i think it has to be and no judge is a car man or a railroad worker with that level of training and experience to know i mean the best evidence available to the judge was what everyone else did that night and not just what they did but then to look at what the arbitrators and the people involved in the disciplinary process also agreed was reasonable those are all trained people who have worked on railroads before i think one could reasonably conclude that a person who works on a railroad might have and it works outdoors every day wearing safety boots and protective equipment might have a different opinion what is a reasonable walk on icy conditions than somebody living in manhattan walking on an icy sidewalk those aren't necessarily equivalent and the question is not what does  faith that's right it doesn't it doesn't the plaintiff actually there i don't think there's evidence in the record to show that the plaintiffs said at the time that he wouldn't go because it was unsafe his supervisors considered that is the reason why he might be saying vehicle to him and he wanted to go if there was a vehicle up there was no vehicle he didn't really have a solution as to how he would get there but there's so there's no witness who was there who said i thought it was seriously  hazardous and a risk to my personal safety no nobody said that there's no expert who said those are the conditions that would be obviously a threat to individual safety no there is no expert discovery in this case the closest we have to an expert are the people who worked on the railroad with their training and experience and what they thought was safe or unsafe at that time i have nothing further unless the court has more questions all right thank you thank your hon is that right in their contemporaneous record and i'm not agreeing that that's all that matters but in the contemporaneous record time can say i'm not doing this it's too dangerous probationary employee me in the context of what was going on talking about bad conditions talking about snow talking about ice talking about it's cold it's dark that's the that's synonymous with saying i don't want to go because it's not  safe and throughout the motion in fact it was they were in the fifty six point one state for example there were a number of items that said dispute that the plaintiff used the word unsafe or the word unsafe but all of these bad conditions hazardous treacherous slippery icy i don't think that we have to suspend that level of common sense and we shouldn't ask a jury not to make those type of inferences and the very same witness mr miller my colleague was referring to is talking about this sheet of ice except mr miller in his deposition said once they get annoyed at you your life turns to misery i said i would do it just to avoid problems that's not the same as saying and i agreed that condition present an imminent danger of serious injury no he said that think the real goal here was to make sure that they're not asked to walk quarter of a mile or half a mile whatever it is in the future if if that was true the railroad have conceded in their fifty six point one statement in appendix one thousand two hundred and ninety seven that tomkins had walked at hundreds of times in the past without complaint it doesn't set a bad present if anything he and him having walked it hundreds of times what would set a bad precedent that's what we're talking about now he had no issue with walking he had an issue with conditions and i would ask the court to take a look at you and you should with safety i thought that was your problem the conditions being unsafe yeah and whether right you know whatever  evaluation for a jury that's that's a determine that's a great probing questions for cross examination and we can assess mr mr tompkins credibility and then i can redirect had you ever walked in the rain before and that's great but what we're doing here i in away from the jury and and removing exactly what we said which is that we're supposed to reserve frankly both the osha in their final reason while true is only one of the reasons for its conduct and that another factor complainants protected activity thank you thank you mr rich he will reserve judgment will argue thanks very much