concerns the federal road safety which is a whistleblower federal statute sort of whistleblower statute without air twenty one or is it the incorporation of air twenty one that makes it a whistleblower statute i believe it would be a whistleblower statute that it's incorporation of twenty one that makes this more like the whistleblower statutes that use the same language that are twenty one to us that it's an you know it's basically an in pyramid teria argument i think that's correct your honor insofar as if it was a sexual discrimination treatment plan and so forth that's less so with this particular provision has to do with unsafe working conditions but that is the whistle there's no whistle blower statutes i couldn't find one that uses the language that sent to twenty one zero nine a right it's what you're really need is the is the stuff that's incorporated by your twenty one to make it look like the various whistleblowers that yes that is correct so can you help me understand how these actions work i'm looking at de three you have one hundred because the secretary does act then you don't go to district court the complainant or the employer you have the option of either staying in the administrative process or kicking it out is what they call it and when they kick out the under ford that they they come to the fifth circuit right  decision that was not appealed but in this case you have a d three d no action so why does it make any sense to use the air twenty one standard since those are all about how the secretary does the investigation lawyer wants to stay in that process they can but if the agency can't act because they're overworked or cetera you just have an options get things going quicker so i understand why congress you make the policy decision mine's a textural argument when a question i should say i'm trying to understand it with the way d three works with respect to this kick out of d for the way through the text of the three reads is that there are two very distinct routes one of them goes administratively through the secretary the other goes through the federal court system and if you don't you obviously are in the second category through the federal court system and if you go through the federal court system you bring an original action right at war and do no review is an appropriate district court that would have jurisdiction and since that's what you did or your client and then it seems like you're twenty one doesn't apply because if you go back to the preceding paragraph it literally the burden of proof says an action under d one shall be governed by twenty one so as textural proposition i'm wondering why we talk about twenty one in an original reaction brought in district court texturally for the prison they just gave you but also just as a matter of understanding the way your twenty one works given that it is about administrative investigation not about the standard of proof to apply otherwise out an e mail essentially what sounds like a litigation hole but he named mr menendez in that e mail to approximately fourteen or fifteen fourteen or fifteen people including mr bennett as of his coworkers so what's important i think in that case is that mr addressed not only the contributing factor in the stocks but also what is an adverse employment action i think that was where the two main points but it's instructive because of the first circuited said that it's of no moment whether there was a wrongfully motivated causal connection and that's employment action not the intent and where i think some of the other circuits have gone astray and there's even a reference to the in the coup that case to the cast off theory borrowed from title seven is knowledge so i think there's quite a bit of confusion between these different laws between knowledge and intent i think it goes without saying and it certainly would be a strong case for the defendant to argue that if the decision maker were decision makers did not have knowledge of the protected activity that's a pretty good defense for them but that's far different than requiring a retaliatory motive or intent the i mentioned the couple of different courts and to my knowledge other than the present case and the upper case i'm not aware of any other federal court within the fifth circuit that has applied  standard that would require retaliatory intent a lot of these things are public so it's possible but to my knowledge that hasn't happened and i think for good reason the over a whole case from the third circuit addresses the history of the forestay why it amended in two thousand and eight to offer greater protection than the collective bargaining agreement procedures had to do with discipline they discussed financial motivations for discouraging claims under the federal employer's liability  act there's a court may be aware of the role writers and see people that work in the c industry maritime industry don't have workers compensation there's a separate separate longer the federal employees liability acting jones act so that's a really rich and important part of the legislative history about why this law was passed and it explains why why it first blush it seems really to the employees advantage right quite frankly to have this law to not have to prove intent but what's different about this law than court didn't reach in the present case but that explains why that at first blush i think that burden seems kind of like to the plaintiff but it was done intentionally so by congress to allow i think a case to get to the merits to encourage whistleblowers to raise issues about safety in the workplace so that one those arrays so they can be better for public safety and all of us but to to allow it to move over if there really was a connection if there was a contributing factor  to get it to the merits and got relief without that by by encouraging or by requiring not encouraging retaliatory intent that opens the door to what we see in a lot of employment cases is a summary judgment we see cases not necessarily i how do i square that with what discriminate so i think it's because of that burden shifting because it goes to with with the employer have done the action anyway that that it falls back typically in title seven cases discriminate would require and does require some level of intent whether that's direct evidence or indirect evidence because this burden shifting is different it just simply doesn't require  normally when the court when the supreme court is saying that there's no intent required so for example in a disparate impact case for example that one of the on the other side one of the briefs points out they look for this results language like th other statutes say otherwise so it's a little broader language but i don't we're not here i'm not here to argue that there is a disparate impact as action under the f r c i think that that case stands for the proposition that the supreme court and congress has recognized there are some statutes that permit a showing of discrimination or retaliation without intent but i cannot point to any language other than in any other way discriminate that would support that argument i think that supreme court case th activity but again that discussion of the burden shifting air twenty one statute and not requiring attend it goes to the president establishes even before the halliburton case the  origin of these sibling statutes that intentionally remove that showing the the part of the parties here both filed the rule twenty eight j letters and i want to address that briefly so what the ninth circuit did in the frost case was i think specifically say that there was not a separate showing of intentional discrimination so i think that's helpful to our president i anticipate and will address on  uttal that i interest paid the apolo the appellee will argue that it's sort of in their right that that there is a showing of intentional discrimination which is in the contributing factor but that's not what the statute set and i also think  good morning ma'am please the court i will tell you in a moment why this doesn't matter but start with the whistleblower versus retaliation label this is clearly a retaliation statute and its particular retaliation statute when you look at the type of action we have here which is under a four and i know that these are not as common these days but i'm sure judge jones remembers the day when texas was full of what were called and now whether you label it whistle blower retaliation doesn't matter you still have to look and see what the statute requires and it's true there are other aspects of the statute that sound more like whistleblower statutes but courts have gotten astray by this incorporation of their twenty one and four parts of some of these statutes and i'll say i don't think most of the courts don't spend a lot of time trying to look at all of these statutes they're all different valves different backgrounds different purposes and so you've got courts that have said the same thing this court indicated in the house of burton case which i'll talk more about the circuits that have said the same thing but then they've also said that retaliatory motive that's required under the f r say so the problem that comes up is the plaintiffs want to focus laser like on air twenty one and this contributing factor discussion which is fine if you're in a in a statute that does incorporated in your in the part of the process that incorporates it but you can't do that in a way where that's the only thing you look at and the ever i say has its own causation statute or a causation provision it's due in whole or in part in the f r s a also has other language that describes what employers are prohibited from from doing and is this car you are you taking the position that the air twenty one standards do not apply when in federal courts that it be because the way the statute looks structurally is that there are twenty one standards are incorporated to the deep deep one when it's in front of the secretary along with the air twenty one affirmative defense and then when it's in federal court this burdens of proof only applies doesn't seem to apply to the death reaction that is to the did no action we we have not we have alluded to that our briefing we haven't made a big issue of it because i think in this particular case it substantively doesn't matter but i think you're absolutely right that al think the key three reference to what is incorporated where refers to an original action of all our equity for going over a review is not the part that incorporates the air twenty one standards and so statute now it is common in these cases because there are so many of them and so many of these different statutes out there for parties and then court is is suggested here still use the contributing factor reference and in terms of what the causation standard is i don't know that there's really any difference between contributing factor and do in whole or in part and we've always acknowledged it is a lower standard and that lower standard is what congress gave to employees and there are cases that talk about this being a hard statute for employers and it is but it's the contributing factor if you look at that or the do in whole or in part causation standard that makes it difficult it's not even one step below that we're not even going to require any type of a showing of or tell a jury motive now either way whether we're whether twenty one is incorporated or not because you don't focus only on the contributing factor discussion you have to look at what what is in the other part of the effort to say i would say regardless of the outcome of that it's still a record there's still a requirement ever tell a jury intent that's the the employer to put it on that's what the employer what the employee has to show the causation whether it's contributing factor do in one part is a separate matter and armstrong some circulation armstrong did a very good job in making that point and i'll tell you that the there are a lot of these cases and and parties and even employees are we we need some guidance from the score on how you're going to come out on this that i would encourage you when you do that to focus on the distinction between the causation standard and what is the employer prohibited conduct and because it's so important to the labor the point just a little bit and talk about on that that we make in our brief between title seven of the motivating factor standard and title seven you've got the causation standard that was in place for a number of years and then in one thousand nine hundred one congress amended the statute to add two thousand he dash g m the motivating factor standard and that motivating factor standard actually when you compare that to the contributing factor language you know twenty one it reads very similarly it talks about whether when the complaining party demonstrates that race color one of the protective characteristics quote was a motivating factor and no one came along after nine hundred ninety one and said oh well you know now all discrimination cases are unintentional discrimination cases we don't have to prove intentional retaliation and in a reference case here that talks about this we did cite this in our brief it's the mass ur case which is out of the surface you know southwestern case that talks about whether under title seven retaliation claims have to be have to are subject to the motivating factors and the supreme court made a very clear  motivating factor that's a causation provision and it refers to language specifically in the statute and calls that the language of what is prohibited the prohibitory language and makes a point of distinguishing those two things and that's what this court should do that's what armstrong  country the principle fault them on all sides is the failure to distinguish between what part of the statute says what is prohibited and what part of the statute says how much of the evidence is needed what what's the causation to have one bucket of evidence over a year and you've got to have another bucket of evidence over here it's most of the time going to be the same evidence just like it is in title seven and that's where i think the ninth circuit ran astray in talking about the separate requirement i mean we were never arguing in that case that there is a separate requirement in the sense of having a bucket of evidence of retaliation in a bucket of evidence of causation it's the same thing and all we're saying is that you've got to show that the employer that causation when the employer that action that is alleged to be retaliation you took it with the so you say you got causation but that the employer took that with the requisite state of mind which is the motive which means consciously holding that protected activity against the employee not some unintentional discrimination or circumstances are such that you could say that there's a factual connection between the protected activity and the adverse action and that comes up sometimes where saying i'm employer would allege would have an injury and the employer goes back in and investigates and pulls out the because you were standing on the track and you're not supposed to stay on the track and then when the road then enforce its rules about that the employee says oh well if i have never complained of my injury you never would have investigated you never would have looked at that video therefore there's a contributing factor you i can talk just briefly about the case of course socks case and as i said you don't necessarily have to try to get into whether that case was correctly decided under a different statute that has different purposes i do think that there is some discrimination language in that stand and so in that sense there could be at some level an inconsistency but however it was also a very unusual case and the principal disputed issue there the one that i think would join in bank poll was adverse action and there is some discussion in the adverse action part of the opinion that certainly sounds like there was a negative intent on the part of the employer but whether that's true or not that case was a what i would say is a whistleblower case in the sense that the employee was had made a complaint and the adverse action was that the employer revealed that employee's identity  coworkers the ones he had complained about that sort of inherently retaliatory where you could see a quarter not spending a lot of time on this question of do we have to have some specific retaliatory motive in that side of the case are you sa let me get this straight he said that you need to have a distinction between what's prohibited and the causation well that's fine but isn't that what the armstrong case said yes armstrong case does say that and that's so why are you saying that still an abiding serious issue sorry you're saying you want clarification from this court could do you mean reinforce splendor what well armstrong is the seven circuit oh right  i go with the seventh circuit i'm sorry thrilled if you adopted the armstrong rationale for this i'm forgetting ok sorry the i believe that one of the comments made about the other circuits and referencing the case and this is and particular out of the eighth circuit was that there's a confusion between knowledge and and motive and that was the argument that was made about it until the blacker be case when you know the circuit reaffirmed you know we said what we meant and that wasn't just talking about knowledge that wasn't just talking about a cat's paul theory we mean what we said retaliatory motive  require we were jackson the language in the third circuit case that perhaps could be could be limited but on its face is always cited as taking a different view and they pointed out that the third circuit had incorrectly relied on a federal circuit case called morano and that's the same case that in armstrong the seventh circuit said you know yes we agree that that prado case is under very different statute the federal whistle blower protection act statute so you know we really shouldn't be applying those concepts in these other statutes  i think that i've covered the main points that i wanted to say hit so if there's not are no other further questions i will be happy to save you some time as well i infer that you want us to rule on this issue but did you  didn't you alternatively argue that apple would have been discharged anyway we did and it did you did i mean was that issue that was tried to the district court i suppose it was tried the judge didn't address it in his order but  certainly i would hope you don't get to this point if you were at the point of rejecting the other arguments rather than the reverse we would ask that you meet that head and there's testimony and actually let me give you the record citations on that point there is testimony as well that you cite in our brief but you know that's the direct testimony that yes you know this very same actually one of the kirk regardless of any the protective conduct and we also put out some evidence which  had any discipline result from that and then the entire process the multilevel review was the other aspect that the circuit pointed to and we also point out here and the other issue in the case that was raised i think of the opening brief i thank your honour's judge joe if i may supplement right my response i don't feel like i adequately addressed your question regarding the discrimination in the f r c the statute reads the railroad employer quote may not demote suspend reprimand or in any other way discriminate against an employee so i would like to i think try to clarify is that that language discriminate is referring to the adverb other adverse employment action so it's part of that same sentence talking about discharging demoting so the use of the word discriminate there is not requiring intent it's simply showing that there are other ways kind of like burlington versus the n s f a title seven case that we're tally ation can take different forms other than terminations or failure to promote and that in our reply brief a page five i also want to say that there are cases out there where a plaintiff does show intent you know and then of course that's ok that's one way of doing it it's just not required so to the extent there are cases that actually the facts support heavier heavier evidence you know that's ok and courts often address that it's just not not a requirement i want to point out that as well with respect to the use of the osha findings we would withdraw that argument to be easy for the court to to address that that was raised it was incorporated by the judge in the summary judgment decision but that's quite frankly a discretionary move and i think the courts have discretion to do that so that's not necessary to to address  so unless there's any other questions we would ask and i think that the d s s arguments have shifted a bit in light of frost i think earlier in this case there was definitely argument that it was a separate showing and i think they've moved off of that kind of going with the heinz fifty seven ketchup approach that it's just sort of in there and that may be you know the direction that the ninth circuit went but i think based upon fifth circuit precedent it's just not a requirement that we should we show the discrimination screen of her intent in any event the court here in its decision did as i mentioned earlier did require two separate showings causation and discriminatory intent or motivation so for that reason we've asked the court reminded of for the court to apply the