the jury returned a unanimous verdict in favor of her husband that jury had concluded that dan was fired illegally from his job as a track inspector at the b n s f and awarded him five hundred thousand dollars in damages dan and kim's daughter turned three in january it's been over three and a half years since that jury verdict and i stand before you today with this case still unresolved because that jury jury verdict was eventually taken away by the district court because of that mr hahn has not been reinstated to his position nor to receive the benefit of the five hundred thousand dollars verdict nor has he received the benefit of the extra five hundred thousand dollars plus that he received later by the district court in attorneys fees and front pa because of all of that he still driving a truck over the road away from his family all week and has barely got to see his daughter be raised and he should be back at work at the b n s f well you can't erase the delay in justice that occurred at the district court level in this case i urge you to reinstate the jury's verdict and to reinstate mr monaghan to his position as a track inspector in this case the district court erred in granting judgment as a matter of law as this court is well aware the standard for taking away a jury's verdict is incredibly high evidence has to be viewed in the light most favorable to the nonmoving party i'm giving the nonmoving party the benefit of all of the reasonable inferences and assuming that the jury resolved all conflicts in evidence in favor of us jury cases are supposed to be decided by juries not by judges no matter how strongly they may feel about the particular case the district court sole reason for taking away the jury's verdict in this case which it's about face on the issue of whether a good faith report  safety condition under section twenty thousand one hundred and nine includes an objective component in addition to a subjective component the district court had held throughout the litigation that the term good face requires only a subjective honestly held belief when the jury found the mr monaghan and beth this definition contrary to the district judge on a personal belief of the district judge solve that problem by completely changing the rules that we had all been operating under in the litigation the court's ruling not only interferes with the sanctity of the jury's decision making role but is legally wrong under section twenty thousand one hundred and nine of the federal railway safety act or hit a railroad from terminating an employee for quote reporting in good faith a hazardous safety or security condition the term good faith is consistently used in employment discrimination and whistleblower cases to mean simply subjective honesty the terms good faith and reasonable are two very different standards congress understands those terms uses them differently in different contexts in order to apply different standards to different things look again looking at this very statute i know you're in b a b alternative to solving that problem and a reasonable individual in that circumstance would feel that they were in imminent danger so when you're in invoke that reasonable standard then clearly we have an objective standard that standard belief but what he's reporting with his honest belief is not a hazardous safety condition actual i'm just saying what if it's not a hazardous safety commission and i do believe that it does have to be a good you have to have a good faith belief that it is a hazardous safety condition that is my as my reading of section b one a bright i'm asking you why that's a better reading then saying that it has to be hazardous safety condition and i think there are there is it doesn't say good faith belief it says reporting in good faith it reporting in good faith as in the issue of motive as opposed to applying to the that that good faith applying to the actual hazardous safety condition is that the point i'm wondering which is the better way to it and why well and i and even if you do and let me go go that direction that if you do read it as having to be a hazardous safety condition we have a hazardous safety condition here for you know i'm happy to hear you out of there but you having for the say on whether we should read what i'm not saying that i've decided we should read it that way i'm working through it surely you having further say and why you think it's better to read it the way you suggest or have you covered whether or there is no case law that actually interprets that particular issue so what you would hear from me is just my arguments as the fact that we have in good faith that is used in this in  this in this statute that that should be used to determine though you're looking at the state of mind of the person who is making the report of the house or safety condition and i think one way to kind of get here is when we have all of the trying to gloss this with actual tangible not hypothetical safety condition that is contrary to title seven law to the extent that we can or can't apply title seven law that when we have a retaliation he says that focused on having to you engaged in protected activity the courts have held that it doesn't have to be actual illegal activity but only that the person certainly are the evidence presented at trial here does support the conclusion that there was a hazard a safety condition in this case various witnesses describe some version of this scenario you're interested in talk about a bridge thirty s is kind of an amalgamation of the different examples and testimony that were presented at trial either based on actual incident instances that happened to people who testified or people that they heard of or there because they were not able to leave the real car because of right so if you are if you are a track inspector a high railing just doesn't give three examples of what you were injured your injuries occurred as a result of having to wear the seat belt well the best example of actual full blown injuries would be the offer of proof that was offered a trial where they just short cut to court didn't actually let us get into that topic with which involved the high rail excuse me and the rail or which is a big piece of equipment in its limits comes around a corner and hits a stop train that was where it shouldn't be those folks were trying to get on buckled from their from their seat belts but because the brakes had been hit everything had locked up and they couldn't get out they hit and we had folks who had serious injuries rod bruni everything blown up had to have several surgeries and end up retiring so that in vehicle that was carrying a lot of weight behind it injuries resulted from the weight coming from but certainly that's part of it and not not every circumstance is going to be exactly the same but the whole idea is that you have trains or other vehicles that end up being out of dispatcher gives you space you're here to do your job your this track inspector who gets on your high rail you have been given a job to inspect track here and you are within your limits where you are allowed to be where other trains are not supposed to be during that time so the being within your limits is a matter of being where you're supposed to be and where you're allowed to be and keeping others out of it to prevent these kinds of injuries but there was i am in a train is out of its limits it means it's  is on his high rail where he's supposed to be there's an amtrak coming the other direction and because of the angle of things he thinks it's on his track when it actually isn't and he was about ready to bail out because he thought he was going to get hit and  die when you're on these tracks the sight lines are not great you have curves you have vegetation you have you are in a high real vehicle where you are attached to the tracks you cannot off the tracks it's metal on metal there's will there maybe precipitation you slam on the brakes you're not going to stop immediately and you need to get out if there is a train coming out sure another which were killed because of the conditions you just described  from the day before where there had been the safety briefing yes there had been some situations where there had been one serious injury and one death of of of track inspectors who had ended up hitting  know what example is that of someone who was killed the day before our my client was held to it was found to be in trouble for not wearing his seat belt there had been a safety briefing talking about two different serious accidents that had happened on the railroad where some track inspectors had hit trains and worse either seriously injured or guy and so that we had been the impetus of of enforcing what had been a rule to wear seat belts that nobody had been following because all of the old heads as they call them on the railroad had had always taken the position and had ben and kind of an unwritten rule that you don't wear a seatbelt when you're high railing because you need to be able to bail out of the head call if you're in the situation where you come across a train or out of the rehab all that's out of its limits and you need to get out of your truck quickly because you're talking about being in a five ton pickup truck up thought we've looked into this we disagree with you we think it is safe to wear seatbelts we're not buying it then if you refuse to wear a seat belt he could be discharged for insubordination i believe that if he refused  and they did write they didn't except defense exactly the jury held entirely in our favor found that we met all of the elements of our claim including that mr monaghan reported a hazardous safety condition and that he was fired for it and  good morning my police court we're asking the court to affirm judge darby judgments matter ball rolling and i've got a few different points that i want to make along the way to different grounds on which you could uphold the ruling in it seems you have some reason why i would have to get to that issue it seems to be front and center ok well i do but let me start with that because that's what you're interested in so i well you may have all turned you mean you have alternative grounds th what prompted this the th if any for judge the judge i think that he indicated during the trial that he had not fully understood what the plaintiff's theory was when he had ruled on the summary judgment motion and  difference from what the law is what his theory was i think when he heard their theory he decided that is not supported by the sound so you decided that i gave the wrong lot of the jury and i'm going to give a different law now in the object of nature of the issue now where do you get that from the text well are our st argument on that point and it it's a background for answering your questions let me just briefly mention and i'll come back to it in detail  reading the word belief into the statute as some other courts have as well most want to haunt us if you're going to read the word belief into it because it doesn't say good faith belief it says in good faith so we're going to read the word belief into that permission then it necessarily h and it's consistent with the supreme court's case we screen court case we've cited the gately call case where the language said only good faith supreme court said you have to apply an object of standard and you have to do that because the statute doesn't clearly indicate just by saying good faith that it's only subjective and there are very negative consequences that would apply from a pool from using only a subjective standard which is consistent with a long tradition in the law of not using a purely subjective standard unless the statute clearly says that and i think if the statute said good faith belief then perhaps we would have a hard road here what is in good faith mean if it doesn't mean if you start on a good faith belief it means belief is an added word there what it means is the employee's motive in making the report is employing doing it opportunistically if he raising  because he's been caught out on a potential discipline issue and this is a lie to get around that discipline so that all it does go to the employer state of mind but it's not the employee's belief that a circumstance exists it's the employees motive in raising the issue and one way we can tell that is to look at some of these provisions we were looking at earlier be once a specific only refers to an employee's belief the employee believes something about the equipment so you've got believes and good friday used in both of those which tells us good faith does not mean good faith a leaf it means the motive in which the employee is raising the issue you think it means that good faith report ye a faith report of a hazardous safety condition if a plea is called out for discipline for example not wearing your seat belt and the responses i'm going to make this report in order to get myself out of discipline that's one way or another could be perhaps i deploy what if it's a what if why would that be bad faith if it's if it's a hazardous safety commission you mean you're only allowed to record as are safety conditions when you're not seeking to avoid discipline your well duh that would be if your motive for reporting it is not to notify the employer of a hazardous safety condition that needs to be dealt with but as to get yourself out of discipline i'd say no that's not the that's not in good  have a bad motive in making a report another could be you are out to get some supervisor so you want to report that supervisor for not doing something and if you're going to read the t v has or safety condition or vision  only dealing with employees belief you know there's an opportunity for potential abuse there in the sense of raising complaints purely out of a motive to do something else with the employer either get out of trouble get somebody else in trouble is out of the limits none of those examples save one had to do with a seatbelt issue it's all speculative that if there's a situation for for a collision i'm that i won't be able to take off my seat belt they only want to had anything to do there was any evidence about a seatbelt being an issue was that road rail or incident where it which is a much larger car it's like a semi on the tracks and it's pulling a one hundred pound one hundred ton the example we hardly was an issue with seatbelts someone else was driving and so maybe maybe the jury person instinctively would put on the brakes if a train were barreling toward a min well people then locks that as well i suppose like they could have thought that but i don't think that alone is enough to show that wearing a seat that was a hazard essentially condition the other problem is the seatbelt rule doesn't just apply when you're facing an imminent collision the seatbelt rule applies are the top and so if the if the protected activity is raising a concern about seat belt rule you have to look at the rule over us to decide if that's a reasonable objection not just in one situation i can come up of other accidents oh absolutely absolutely that's how this all started was there had been two accidents where the individuals had run into the back of the train and they were not wearing seat belts and one was killed and one was seriously injured and that's why they were have to say ok we've heard your report we disagree we're sticking with our safety and the only consequence is you can't retaliate against him or do anything to him for reporting it well i think it a very short leap between individuals making reports like that and mr anderson testified that it's a common response when someone is caught out on a safety violation to raise an issue about that very short link between that employee saying well you disciplined me and you say it was for not following the rule but i say it was because i raised a safety concern and so the jury's going to have to decide every one of these cases and what you're going to end up with is the railroad is going to become less safe because individuals can set their own safety rules i sang i object to that safety rule it's not reasonable and then when they're not following that rule they raise that objection again then they're disciplined and they say well now i can bring a case because i say it was because i raised the concern you say it was because i wasn't following the rules well i have to let a jury decide which one it is juries might still say the motivation of the company was something other than insubordination well it's the having to go through the process of taking every case like that trial when you and employees out there who setting their own rules over and over the road say now revenue could be a policy problem i guess it could be a problem with what congress did as opposed to us anything we can address if you find that c bell rule because overall that seatbelt rule is absolutely safe and you can't say it's unsafe just because you can come up with one scenario where if this happened and if i couldn't take my seat belt off even though that's never happened i would be injured you know that doesn't make the rule say so with that all my time is so very well thank you thank you for your argument this is not a situation where mr monaghan was trying to set his own rules there is ample evidence and actually uncontradicted evidence that he held an honest good faith belief that wearing a seatbelt  hazardous safety condition he raised his concern in the safety briefing the day before he was caught without a seatbelt on in the context of a discussion about whether or not this was a good idea to be enforcing the safe seat belt rule so clearly that was not a situation where he was trying to be defensive and get himself out of trouble and the day that he was actually confronted by his supervisors on the track he had had his seat belt on earlier in the day had simply forgotten to put it back on after he'd been in and out of his that day doing slower when you're not in the habit of wearing a seat belt it's kind of hard to remember to put it back on he was very respectful when he spoke with mr anderson that day he did what he was asked to do just wanted to express his concern about to be n s f newfound rule to enforce this seat belt roll because of those honestly held concerns that he had about high railing so even under an objective standard if we wanted to apply that the evidence that was presented at trial in the scenario of high railing when you might come across a train or other vehicle out of it's out of its limits is a hazardous safety condition but even if it isn't the law of the case and the fact that the jury instruction the portion of the jury instruction that included the subjective  concomitant was not objected to the bite by the b n s f so this whole argument is really for not when the law of the case had been established that this was a subjective standard and the b n s f did not object to that portion of the jury instruction  mr anderson when he confronted mr mahaan is that this is an ops test failure and operations test failure it's basically hey we caught you doing something wrong it's a mark on your record it's more of a training sort of