we do have our lighting system which i think you all are familiar with and i know i'm not perfect on enforcing it but i do see it is my job to enforce it so i'll i'll try to do that so now called the case of christian girardi versus city great defined by the supreme court in the sutter case by this court in the wire grass case and the issue and the error made by the district court here was in vacating an arbitration award when the court sole rule is set forth in the so in the wiregrass case is for review in court to determine whether the arbitrator even arguably interpreted the parties contract now whether he got its meaning right or wrong  in that case why are grass isn't it acceptable if the arbitrator exceeds their authority and modifies the plain language of the contract isn't that allowed for the district court then to reverse or amend the judgment well  because the contract had two provisions two conflicting provisions the at will employment language and the anti retaliation language and what judge garro did in the this record and specifically of page twenty four was t the anti retaliation language in the contract she simply read it out of existence with the arbitrator's here did were charge were doing with were were and did with the parties ask them to do their submission of the women was to interpret the contract in the contract in the handbook had two provisions that were in conflict with each other and that's what they were the retaliation provision doesn't what the retaliation provision mean that if you file a claim and arbitration that there cannot be retaliation against you there's an anti retaliation correct but the you're still an at will employee you can be fired for any cause well this provides that this is the ambiguity here what is the an in language meet it has some meaning the contract that is the case is say all provisions of a contract have to be given effect and in this instance the district court gave the n t r retaliation provision no effect whatsoever the arbitrators and even if the court determined that it was an incorrect a legally wrong erroneous grievously wrong decision as the supreme court said in sutter that's not sufficient for the court to change the result of what the arbitrators did if what they were taking were provisions and there's no dispute that there were two contractual provisions here and they tried to reconcile their meaning which city has done and they argued for the st time in their appeal brief they didn't argue it in the arbitration they didn't argue it in the district court and therefore they waive argument what they've said was the end there were television provision really wasn't a contractual vision but was an internal policy a non binding provision that they made that argument in their public priefer the st time recognizing that the is so clear that if there are conflicting provisions and the arbitrators are simply doing their job what's expected them to do so they what they've tried to do is create a carve out and say oh that anti retaliation language isn't contractual it's an internal policy what if if city had intended for assume that city did intend for that language to be non binding and non non arbiter of all how could they have made that more clear than the contract well they could have said it but they said in their  is a non binding internal policy we will endeavor not to retaliate against employees who pursue or policies or you have no rights to encourage employees to use this but you know there's it possible that you know something could happen that you're always at subject to being terminated no matter what they put in language they be as the drafters of the contract included the end i retaliate in language and therefore it has meaning therefor going almost further he said quote when the parties contract the signs of matter to arbitration a court may not resolve the merits of the dispute even if the court thinks the parties claim on the merits is frivolous the supreme court has said that the when a contractual is issue is submitted to an arbitration panel for determination that's it that's what you bargained for that's what city bargained for city included the arbitration agreement and it's book city included the anti retaliation language in its handbook city agreed via the submission agreements to have this entire dispute resolved in arbitration and they got and the parties got exactly what they bargained for thank you thank you thank you is the court your honors the issue as stated in wire grass is whether on the one hand the arbitrators were arguably interpreted the contract or on the other where they substituting their own views of what's right and wrong or it's not that presumption is not rebutted by silence or lack of an of a stated x explanation in this case your honor if we look at the district court's order both on the retaliation issue and on the agro an issue the court express says the arbitrators interpreted the contract but wrongly in view of the district court in other words in view of what the if the district court had this issue on cross motions for summary judgment the district court would have ruled as a district court did that's not allowed in the arbitration context because the interpretation of the contract is given to the to the arbitrators who has as as my co counsel said decided whether the contract either meant we cannot retaliate against you for firing to file and using the dispute resolution process or we cannot fault we can do we can't retaliate against you by moving you from your corner office corner office but we can fire you which was which citibank's argument that was an interpretation issue so let me go to the agro in case the ag run in liang cases these are finra arbitration cases which hold that if there is an agreement as in this case the contract has an implied term an implied term as a matter of law as a matter of federal common law that the arbitrators have a power and duty to determine whether a terminations is justified this is federal law that the arbitrators were argued to and they followed this court in the rosenzweig case dealt with an unjust germination case of firmed it in favor of a broker not withstanding the opposing counsel's argument is that there is no such claim i understand rosenzweig didn't directly address the issue before this court but it it's consistent with aggro and leading also by the way consistent is citibank which says there their representative testified in the ar n we don't terminate without cause so this is this is the common law in this in the arbitration industry now the district court said you know what there is this dictum in the bishop case from the th circuit and i agree with that i find that more persuasive again that's no more than a legal error at worst and that and the arbitrators were trying to interpret the the contract which federal cases have said cases that have never been overruled in decades that there is an implied term that arbitrators have the inherent duty to determine whether or not there is just cause for a terminations i mean is there a specific is there a specific provision in this particular contract arbitrators on the facts citibank said we did not terminate in retaliation for exercising his dispute resolution rights and our conduct was appropriate those were factual arguments made to the arbitrator submitted to them i want to quote closing argument to the arbitrators was city expected to live up to the promises in the handbook of course it was so even though they say but it's not technically a contract citibank told the arbitrators this was this was very similar to the union rules this was the way it was citibank promised its employees this dispute resolution procedure they promised them they would not be reprisals against them for participating in it and then they violated that as to mr gerardi also we have to look at the record at citibank may there was a disciplinary warning there was a formal discipline there was a formal disciplinary process the  disk the final warning would you have filed an arbitration on that final warning to challenge it mr drafty which you had the right to do yes he would have the arbitrator said ok we will look at whether that final warning was justified as we were allowed to do into the city make policy and if it wasn't everything falls where the arbitrator is we will decide that issue so again this is simply not a case where the arbitrators were on some frolic ind correctly concluded under wire grass that this award is based not on an arguable interpretation of the agreements but on an improper modification to the documents i want to st address where counsel left off with regard to the the final warning that began is the foundation of the retaliation argument the final warning itself embodies the principles of out will employment that are expressed in the governing documents it says explicitly you are an out will employ and your employment can be terminated any time or for it and for any reason it doesn't really matter does it pressing cre is the st question is is the governing document or the governing documents the agreement pursuant to which the parties submit it agreed to submit to arbitration is it ambiguous and if the answer to that is no then the issue of the arbitrators interpret ing the document is a nonstarter that's what that seeing you know assist a judge and borrowing caged in and we submit that there is no way this the retaliation cause does not create any ambiguity and i'd like to explain why in the one condition precedent to that and that is why isn't that one of the decisions that that is also given to the arbitrator under that under the contract to determine whether that dispute over they were of the outlaw employment is even arbiter of all in the st place the arbitrators this comes from oxford still we'll soon you know the  fundamentals of our jurisprudence are that the arbitrators have the authority that was delegated to them by the agreement that's the promise of arbitration and the the what was submitted by these parties agreed could be  rated were employment disputes right but one thing that was excluded and it was expressly excluded again and again and again was whether citibank could terminate mr gerardi on any day for any reason that's what happened here and that's what the arbitrators awarded for they didn't he sued for his damages claim or in the way he pled this and it's in his closing brief the pleading and surround you tween pages forty four dollars forty eight cents of his closing brief to the arbitrators he pled for three  in lost earnings he pled that specifically as damages for defamation which was a tort that wasn't that would have been correctly submitted to the arbitrators he as a sort of a footnote included that as his breach of contract damages and for his wrongful termination damages he asked for the trailers and the deferred comp which was we don't challenge that award because it's tied to other agreements but what was delegated to these arbitrators didn't include the ability have to grant relief for a breach of a promise that was expressly disclaimed we do not promise you that you will have any guarantee of employment and therefore near a guarantee of the right to receive  wages that's our position and the arbitrators weren't empowered to make this award of these damages we don't challenge that the arbitrators could change the u five because the reason for the terminations was incorrectly characterized but what the arbitrators had that was delegated to them and paragraph one thousand b of the armed protection agreement confirms this in addition to the out will language that is florida new york which everyone doesn't authorize any damages for abol termination because neither state recognizes such a cause of action in the context and so by the same token the arbitration clause really doesn't give any view any recourse i mean the arbitration clause really doesn't provide any opportunity for a fired employee because they're all at will well it certainly does provide plenty of recourse for employees that are terminated for reasons prohibited by law for example if mr allege that he was fired on the basis of his gender or an age issue or some other protected  problem he would have recourse the employment agreement is clear on that what it is equally clear on is that he has no recourse based on a promise of continued employment that is not a promise that was made it was express wizened that it sounds like you may very well be right but why isn't that an interpretation of the contract rather than a scope of the agreement in the st place i would direct the court to the part of buyer grass that says authority to interpret is not boundless and one of the examples that judge carnes wrote about in wiregrass was where an arbitrator grants a remedy that's not authorized by the agreement that's there's a paragraph devoted to that in wire grass authorized by the contract is exceeding powers a remedy for lost wages on a terminations is explicitly not authorized by this contract because it says at will so my argument on your question judge grant with regard to the arbitrators ability to interpret is this is passed that boundary the judge carnes identified in my or grass  i want to address one other point and i'm not sure if this is a an issue for the court or not but counsel raised it the issue of citibank waiving is simply incorrect the citibank argued in its motion to vacate and in its opposition to the motion to confirm the issues concerning the retaliation agreement those are the docket entries twelve dollars thirteen cents and the argument is right around page eighteen in both of those and i would direct the court for that proposition to no eight in the catch harder case that indicates it is entirely permissible to raise legal arguments challenging the ward at at the time of the motion to vacate city certainly argue during the arbitration that the those cases were treated as collective bargaining cases because they were being arbitrated under nasdaq rules generally applicable at that time none neither of the brokers in those cases had employment agreements that said that they were will and to imply to to allow the arbitrators to imply the rights are a sensibly represented by those precedents would again be a violation of wire grass because our agreement unlike the ones it featured in those was not a collective bargaining agreement imposed by the rules of nasdaq it was an explicit out will employment agreement and so to imply something that is not relevant to the circumstance would again under wire grass have been in excess of the arbitrators powers you indicated that someone could and responsive judge martin's question that someone could bring a wrongful termination case to the adver if it was because of race or age or some other federally protected characteristic is that right that's correct so obviously those provisions interfere with the pure at will provision of the employment contract right now it wouldn't say that they interfere respectfully i think that there harmonized with because their couch does exceptions to the at will they say the with the agreement says is your employment can be terminated any time for no reason or any reason not prohibited by applicable law apin then applicable law is defined in the agreements as exemplified by listing the various statutory causes of action as examples of prohibited so why couldn't obviously they retaliate and provision is not a matter of law but why couldn't they retaliate in provision to be read as one more narrow exception to the outlaw implement ation shit that's otherwise expressed in the contract for is a starting point context context is everything and the context of the retaliation provision which simply says retaliation is expressly prohibited the context of it is that right before it right after it and all around it these agreements say you were out will and i would direct the court to the provisions of the statement  intent and that is that is the you know the guy post i may ask you a question because i know that there are the exceptions list all the different federal laws regarding the civil rights act a risk fair labor but in addition to that it also says defamation or retaliation whistleblowing or any other claims arising under related to the citi group separation pay plan why is the use of the word  retaliation after defamation why does that not include then a claim for retaliation if mr gerardi had and he did plead this sought damages in tort for  retaliation as opposed to for the wrongful termination as a contractual claim and that's how he pled it breach of contract and or wrongful termination and or separately he pled defamation and to answer your question there is only one thing that the arbitrators at least for purposes of our conversation there's only one thing these are we traders expressly that the parties promised would not be it was excluded from wa wrongful termination damages for lost earnings for that's what wrongful termination is retaliation if there was a torch for that perhaps he could have pled that claim and he did he pled a defamation claim that based on the retaliation and again i would remind the court that the his retaliation theory doesn't stack up against these documents because his whole theory was the final warning was not valid it wasn't based on good facts the final warning and then and then he said he pursued the internal procedures he was unfairly denied on that and he got fired after he said he wanted for he thought he was going to formally arbitrate and that was the retaliation well he knew when he got fined a warning and it made plain to reconcile the question that you've asked judge alito and nothing in the disciplinary procedures precludes firing even when that's going on and i would direct the court to the statement of intent which says that you know outwill and doesn't afford an employee any rights that they didn't already have and in the handbook reiterating the at will it says that there is no guarantee that the employment will end under certain conditions and and city doesn't have to follow the dispute resolution procedures to terminate an employee and if you read all of those provisions in context and they also exist in the dual employment agreement which incorporates the principles of employment the only can textually appropriate interpretation of the retaliation provision is that it is not a free standing separate or conflicting agreement that would support a claim that is otherwise completely disclaimed by the parties that are reasons that are set forth in her order thank you for your time thank you  reference page twenty three of that same arbitration agreement which i think rebuts much of what you just heard this is part of the citibank contract it says citibank is not required to follow the steps of the dispute resolution before taking disciplinary action of any kind including terminations however if you disagree with any such disciplinary action believe that such action violated legally protected rights and wish to pursue the dispute you must institute proceedings in accordance with the policy the results of the arbitration process are final and binding on you and city that's exactly what mr gerardi did he said my legally protected rights include a protection from from retaliation which is not only from filing an arbitration which he had said he was going to do but also in get appealing the dispute resolution in the handbook that's also protected from from retaliation and also his legally protected rights as stated in the liang case or at least that's the interpretation question that was before the there was before the arbitrators and the the this argument that wrongful termination doesn't exist is a legal claim as been rejected most clearly by the th circuit in the b n s f case in this case the contract said we can terminate you at any time without cause the and awarded damages that was peled because that's it's not only what's in the written contract which is what the court looked at but all the bodies of law that may apply so that so also i want to you know again i think counsel  knowledges that we're in the we're in the the world the world of was this interpretation or not and i want to go to what the district court said page twenty four of the final order d e twenty nine de this is on the retaliation point deference is not warranted where the panel's interpretation directly contradicts the plain language of the employment arbitration agreement in other words the district court acknowledge that the panel interpreted the agreement but didn't agree with it using a summary judgment standard and again i would say that is a matter if this were an issue to be argued that just in the same way you can't fire  race you know whistleblower status etc if retaliation is excluded is protect is prevented you can't fire on that they see either but nonetheless you don't have to decide if it's right or wrong it's still an interpretation as a district court said and so what we really have is a mere disagreement with an arbitrator's interpretation which is not a basis for making sure the same thing happens on the agro on case where the district court says i understand there are three cases that say arbitrators always have the duty with brokers to determine whether or not there was just cause but i don't agree with that citing dictum and bishop again that's not that's that's not that's just an error of law at worst so unless the court has any question you know since you're going to give me some of your time is it true that you all had seventeen arbitration sessions in this case i mean you know i understand i'll start from the place that the two parties agreed to arbitration and that's how that's decided but just as a member of the judiciary for twenty years you know i'd make a little commercial for the courts i think we could have done this all more efficiently and less expensively so thank you