instruction was improperly borrowed from the mcdonnell douglas line of cases as a result of the jury instruction confused or misled the jury to an extent a prejudiced mr armstrong under the air for a say  plaintiff has to show by a preponderance of the evidence that the employee engaged in a protected activity that the employer knew about the protected activity the employee suffered an unfavorable personnel action and the protected activity was a contributing factor in the unfavorable personal action the use of the phrase contributing factor in the trim analogy makes it clear that defendants motive is not something the plaintiff must prove this court has acknowledged that a contributing factor is something less than a substantial motivating one the term first appeared in the whistleblower protection act into fide to define the term well that the statute is is a prohibition on intentional discrimination so there does need to be a retaliatory motive the question of contributing factor is a causation question because judge i would be doesn't have to be the cause it has to be a cause so you're focusing on the wrong part of the statute i think there does need to be a discriminatory motive a retaliatory motive test intent to retaliate for filing the safety report yes but that's not something that i think is an element that has to be proven under the four things it is done let's say clear from the  focused on is retaliate or emotive and what's relaxed in this context as opposed to some other anti discrimination statutory contexts is the causation factor a cause  have and has that but rather some other discriminatory or anti discrimination statutes correct require the discriminatory motive and action to be the and to be the cause of the employment action instruction it's just stating the retaliation motive in an inverse way and other words if the employer was not acting within a retaliatory motive because the employer believed in good faith that the plaintiff wasn't engaged in protected activity in good faith it's just an inverse way of saying that element i guess i guess just  frost is both factually distinguishable and contains gaps in reasoning that i don't believe should be adopted by this court in terms of the factual difference in and is not a fact in line with most of the other cases when you look in this area  the plaintiffs protected activity related to a different incident than what he is later on disciplined for so for example in frost the filing of the injury report was related to an able to go into an incident in montana but the only disciplinary action at issue was a lawsuit based in november in wyoming so in this case armstrong case what makes it factually different to frost is nobody's really disputing that all of these events took place within hours of themselves so in other words mr armstrong event occurs he reports the injuries on superbad drives him to see the doctor he comes back they apologize to him for what has happened to many fills out an injury report so it is all part and parcel inextricably intertwined of the same of that which makes it factually very distinct from frost whereas i for i think frost relies on the fact that there's two events the legal reasoning two in frost i think is questionable and and what i would point to is that the opinion of frost makes no mention regarding what additional problems would occur when you give this instruction in isolation there is no explanation whether or not the defendant's burden is to prove their own honesty whether or not the plaintiff has to establish the defendant's dishonesty it's not explained whether or not the good faith or the honest belief instruction is to have the clear and convincing evidence standard applied or whether or not it's the preponderance of evidence standard applied those issues aren't even discussed in the frost opinion  standpoint makes it not very persuasive for this court which similarily happened in our case which is the honest belief instruction was given in isolation with no other further instructions to it is a matter of fact there was an instruction given by judge blakey that a number of these terms are terms of art i asked you follow the definition i provide you with the instructions i'm paraphrasing paraphrasing here and that  you don't rely on your common sense or common definition of these terms so when they're given and i just believe instruction without any understanding of who's burden it is to prove it to what extent that burden has to be shown and what how these terms are be to be  framed the issue for the jury no i don't and i think what i would point to judge is the fact that they filled out both jury verdict forms they in fact filled out a form that they were not to fill out unless the plaintiffs had met their burden the defen argues that that shows that the jury decided the plaintiff and not met their burden of proof we argue that all this simply shows there was confusion on their part when they had been specifically instructed not to fill out a portion of the of the verdict form so while i understand the court's question regarding number twenty one and twenty three i think looking at what the jury did in fact to do in terms of jury instructions show that there was prejudice that they were not did not have a clear understanding of what they were supposed to do once this honest belief instruction had been the question becomes though and i want to make sure i spend some time on this is even if you were to decide that the honest belief instruction was not proper in this case i still have to show that the instructions in total resulted in prejudice to mr armstrong right so i think this record clearly shows that in terms of the four elements that needed to be shown by mr armstrong that he has shown them quite frankly two of the four even really contested number two that the employer knew about the protected activity that wasn't really in in contest and and three d employees suffered unfavorable personal action nobody denied that he was fired as a result of this what was really in contention was number one that employee engaged in a protected activity in good faith and number four the protected activity was a contributing factor in the in favor of personnel action so what i would draw your attention to is in the record in terming in looking at both the subjective and objective evidence in the trial record regarding number one did armstrong show by a preponderance of the evidence that he acted in good faith in reporting an injury on may fourth two thousand and ten the evidence is that clinton johans took mr armstrong to the clinic for treatment shortly after he reported the injury this was within almost an hour of him reporting the injury it's important to note that this entire event occurred between mr armstrong and his own supervisor so he's now being taken to the doctor by clayton joy hansen one of mr motley supervisors mr johansen testifies on the way to the vehicle i witnessed him limping to the car we then go to see the doctor and he limps into the doctor's office vito's the doctor there first saw him testified that he had object in an objective observable injuries upon examination and he again limps to the car now wearing a foot brace and then returns back to work at which point they fill out the injury report or during which time the supervisor who had been involved in the incident actually apologizes to or before they fill out the injury report mr armstrong engages voluntarily engages in a reenactment believing that he's participating in helping that the railroad understand how it is that he got injured so i point to all this evidence because in addition mr molly was removed from service for three days and most importantly the railroad placed mr armstrong on an on the job injury off to me and he remained in that status until after his disciplinary hearing all of these facts point to what the jury heard in terms of whether or not he met his burden by preponderance of the evidence for that first element all of these facts go to show that he did in fact meet his burden in the event you were to say that this jury instruction was not a good faith or instruction was not properly applied the next question is by a preponderance of the evidence was mr armstrong's injury report a contributing factor to the railroads decision to fire the railroads own records say that it is the terminations letter that mr armstrong received from the railroad exp cited the may fourth two thousand and ten injury and his employee personal injury occupational illness report i think that's the white light which indicates i'm going to my rebuttal time at this point so i will save it there's no questions i'll save my attacked by his supervisor chris motley the general manager of the chicago division and that i go immediately began a workplace violence investigation into mr mollett not mr armstrong during the course that investigation  video was uncovered suggesting that this event could not have occurred and mr i go reasonably believed that this event did not occur that this attack was physically impossible because mr motley was standing was standing in one corner of this glass house the south at union station while mr armstrong was in the opposite corner of the room by the door the jury heard all of this evidence the jury saw the video in the jury was able to match what mr argo was saying what all the other b f managers were testifying to during the trial and determine for themselves whether mr i go or any other pianists a manager honestly and reasonably believed that mr mr armstrong had not been attack that was the evidence that came in the jury sided with the n s f on the first question and the jury also sided with the n s c up on the affirmative defense now it's clear that the jury didn't have to answer the second question but they did and that's  appeal simply because if the n s f proves by clear and convincing evidence that he would have taken the same action absent any protected activity that means that there's still no liability into the air force right that goes to the question of prejudice but the threshold question is whether this is the proper jury instruction on the meaning of retaliatory mode and when there is a concern that it improperly shifts the burden to the  that this court and cosey are the eighth circuit in gunderson have held and determined that it is relevant to look at the on this belief of the actors when they're making their decision in that simply because if they had taken action because of their honest belief that means that a contributing factor was not a factor in their decision so that's point one point two is that when you look at the instructions as a whole you know the jury was a misguided they were instructed to look at all of the evidence and consider all of the evidence when assessing but what we're talking about is is how the jury should be instructed on the issue of retaliatory motive so maybe you could address that directly i find close sierra really hard to understand and this isn't again question this is the definition of what it means to hold of retaliatory motives sure so why is this a good definition of that and consistent with the statute it's not a good idea i put the two little points of this argument on or first but certainly to the extent that they preserve this particular issue the honest belief instruction here references several things one the reference is based on so the in the jury was instructed that they're only to look at the honest belief of the actual managers in the decision making in this case the jury is also instructed to look at honestly held belief so it's up to the jury to make the determination which they did hear that the belief was was reasonable they had a basis in fact and as i mentioned earlier the jury could match what was said during the course of the trial they could match the video to what mr i go or any other being as a manager testified to as  as to why they believed that mr armstrong had had lied or was just honest or misrepresented the facts in addition to that the jury was instructed that if they concluded so there was nothing to suggest that any question is to be honest belief issue was taken away from them and they were automatically to suit them that be n s f honestly held the belief just because the manager said so it's if they conclude in instruction i that this particular set of instructions told the jury to look at the entirety of all the evidence and to consider all of the evidence as it was presented in the course of the trial so certainly just by virtue of the language i don't think there's anything wrong with this the judge was also saying that if then it was reasonable for being a self to have then concluded that the plaintiff was terminated because of the law because of the dishonesty because of misrepresentation not protected activity in good faith so the district judge was taking the statue a protected activity that was protected and statute so i think on that basis there's nothing wrong with the language of the step in this particular instruction in addition to that our trial counsel elaborated in the closing argument how this instructor should be viewed that is that if the jury honestly believed that the b n s f managers thought that this event could not have happened that mr armstrong had lied to the dishonest or misrepresented the facts then they should find for be innocent and certainly there are a couple ways to go at th particular issue and i think that all these to the conclusion that yes the n s f honestly believed that mr armstrong had not been attacked in this case even if the court does assume though that the honest instruction was an error the course of still fine for being a self simply because the affirmative defense of people in this case with respect to the insubordination issue it's clear that the the the pepper policy which  a for seventy one and you know to the extent that in a normal f r s a case you've got to sort of engage in metaphysical gymnastics as to whether we would have or we wouldn't have dismissed or disciplined an employee for undertaking a certain  action in this case the dismissal letter actually references insubordination so we don't have to engage in those what is are those hypotheticals as to whether we would or would not act on it we actually did do and we did in fact so certainly in this case even if there was an issue with the honest belief instruction just admit that wasn't the course it's still fine for being us because the affirmative defense has been proven this notion that because the jury answered the affirmative defense when they didn't need to answer it somehow we've insist confusion well two things on that your honor first of all they didn't actually ever chat in the trial court to the fact that the jury answered the second question when they didn't need to answer it but i'd like unambiguous resolve any ambiguity whatsoever the venous of did nothing wrong in this case there's nothing inconsistent with the jury finding against mr armstrong and also finding for b n s f on the second question all roads lead to the same result and then the second trial the touch allowed this instruction that seems to be the only difference also the judge could have looked at the facts differently as it came into the course of the trial it's unclear why the judge allowed it in the second second tr the first it was just a legal question about whether it's a good statement in line has nothing to do with what the proofs you know any subtle differences in the the instruction might have made a difference not necessarily in this case because the way the evidence came in again it was the jury's domain to look at the evidence look at the video determine if in fact the decision makers  go testified in accordance with what the video or what their perceptions of the video were the jury could have had a different perspective of what the video showed for instance during the course of this trial the plaintiffs argued  was standing right by the door even have a photograph that they showed multiple days in the course of this trial or trial in which mr martin was holding the door open they suggested that that was a reenactment photo and therefore because it was a reenactment photo it must have suggested that mr  had been by the door even though mr i go believe that he wasn't by that so factually speaking the plaintiffs brought this issue to the forefront during the course of this trial and i think it was certainly appropriate for the district judge to take all that evidence and to note that the r issue related to cost because the supreme court specifically said if a statute is silent with respect to cost then there is no overcoming a presumption and a rule fifty four towards that the court has no other questions we would see the honest belief instructions improperly shifted the burden back to mr armstrong to have to to rebut it i mean when you look at the totality of the record in the two trials that were in this case in this case the honest belief instruction goes down to well he reported an injury we don't deny the report of an injury but we honestly believed at the time that he was making it up so therefore we fired him we're sorry we shouldn't be held liable that is that's what the honest believe closing that the defense counsel gave when he used that instruction that is not the law  he reported an injury nobody is doubting the fact the report of the injury even if the part and parcel of how that injury occurred in his interactions with mr motley that doesn't matter because under the f r s say once he reports the injury it shifts to them not to take a adverse action against them which they did in terms of the insubordination the record of these four nation is not that clear that anyone will know if i or not and immunity statutory a strict liability statute it does that there is a requirement of retaliatory motive i agree but with a relaxed causation requirement there may be multiple causes for the adverse employment action but and if retaliatory motive is one then the burden shifts but not until retaliatory lot of is proved right and then on this record you have before you i don't think any reasonable jury could conclude that it was not proven in terms of what went on with this hearing with the discipline the events of that night when he was reported the injury and everything that went on at that point so i do think your honor that the four elements that needed to be shown were shown shifting the burden to them at a higher standard so their mind set of whether or not they did this in good faith that by looking at the video and within a few days they had already determined that they weren't going to interview mr armstrong they were going to return his two phone calls they were going to conduct any additional investigation they didn't bother to get the medical records they ignored the excursions that said that both of his injuries to reason agree medical certainty were caused by the events of that night they'd look into any of those things and they just simply say because of insubordination his refusal to stay in the room that's why we fired him the problem with that is armstrong was a military police officer as well as a prison guard and if you watch the video he simply removes himself from a violent confrontation as his training had trained him to do he simply steps outside and remains outside on his phone he doesn't get on the train even though molly doesn't even have the authority to stop him doing that so the insubordination charges that he was or that he was eventually fired for is not found in the record they didn't actually prove it they just come in and say well we fired  reasoning of marx the reasoning of the supreme court in marks to give a hypothetical where they say in the event that you have an issue like this where you have one provision that talks about costs being awarded in another provision not being awarded that can take the discretion away from the district judge in awarding costs that is in line with the f or a ses underline purpose you have to remember mr armstrong's case languished for two hundred ten days in his osha filing with the department of labor