ok and and we're hearing it only the city's appeal and not the appeal of the employees are doing of bias or retaliation as one of the proximate cause that's where the and this is in cases where the actual decision maker lacks retaliatory animists if the retaliate tory act remains a proximate cause of the ultimate decision then the employer will be liable but if the initial retaliatory act becomes too remote or indirect from the ultimate outcome have in this instance because we're dealing with a little fifty motion as to whether or not as a matter of law the evidence could not support the finding of the appropriate causal connection between  retaliatory animus and the adverse employment action and when we look at the the the trial record here regarding mr carnations terminations from the philadelphia police disciplinary process against charges in other words the record contains undisputed evidence that kept in colorado lacked any authority to terminate mr carnation or even to ensure that there would be a hearing on these charges they had to go through various levels of approval and the commissioner had to sign off to have a hearing once that was done then the process was turned over to a disinterested if you tory body the police  and this board's was set up with all types of due process protections to have a trial basis to figure out whether what happened what was what were the facts and to enable the accused mr carnation to cross examine present evidence if you desire to and to do all the things that courts do to have the bot the the members of the panel  appoints a the board is a branch sort of not not the you know it's a it's a branch of the police department so it appoints the the police board of inquiry administration apparatus for lack of a better term it's not the the commissioner himself or something it is it is a body that is set up to process these types of charges so what they do is there is a list of its captains lieutenants and their officers and they  i don't know whether it's people who have been identified as by by interests themselves or whether at a certain level you are asked but what i do know is that there is a large number of people who are tapped asked to be on a board and then they have their regular job is whatever they're either supervisory role is or their their office or role is and one of the things one of the requirements of the board is that the accused have a person who is his peer at his level be one of the members of this board so  carnations case we would be there they would look i'm sorry the board with look to see who are officers at then officer carnations here level about it on the philadelphian so i read about it well they and this is changed a little bit over time when when and when i read the trial record they they have individuals working for the p p i who will help develop the charges and the pats more so karen lee that's changed to be more so now but they did have some input on charges in the process at the time of mr carnations case well if they do have an independent investigations they are more of a deliberative group they do not hear the information that's presented to them another  they get the captain's report and what else do they get what they get are charges from suggestive charges from the captain they don't and so i mean there's no is there any response to the captain strangers or the just get the ca which that i hate when when these charges have gone through various i think they went through three levels they went through an inspector they went through eventually were signed by the commissioner to on when the captain was off duty and on vacation using a number that he got to say that he made to have proper cause and yet we got him the captain's orders well and disregarded captain's orders and then during the call used insulting and profane yes they added the charge of conduct unbecoming a based on those calls it during the trial mr carnation testified and i i cannot tell you exactly what he meant by it but he said something that was added about my saying i was going to kill the captain so i don't know determine whether conduct occurred rather than simply as in style when you look at the facts in that case where there was just a report of the complaining supervisor and the h r director gets it and reads it yup and reads the reads the personnel file no other due process no opportunity to cross examine and no opportunity to come in and tell your own side of the story no opportunity to have to process procedure had your attorney come in and and he was represented at the searing so this is completely the opposite side of the spectrum from the type of independent investigation quote unquote that occurred in stout we can understand why there was no causal breakage of the link in stout it was it was pretty much that of the complainer supervisor was making that decision it was totally delegated to him but when when an organization particular government organizations these are fairly common that that there are board the jury did find that he was motion that on that record that as a matter of law that requisite causal link could not be found by the jury and therefore that the jury verdict should be overturned as to that claim that worry about the red light because we've been the police review board did you not have an opportunity to present that to the jury the evidence about the police review board was presented to the jury again this is this is in purely in the context of a rule fifty beauchesne that as a matter of law that the record did not provide a sufficient basis for that call so it is it is the obligation of the plaintiff to try to prove that there was the direct relationship that stop retains that language there must be a direct relationship between the animists and the ultimate result and scalp also provides in that they weren't really thinking of this instance but they do they don't say that an independent investigation or another trying to find the facts and get away from trying to find out if there is an a miss and filter it out totally and find out if the conduct actually occurred they don't say that that's precluded they talk about they say there's no hard and fast rule here but you see it in the very very few in this case though was made in the context of our president abramson which is that  e discrimination may be found the those exhibiting discriminatory animists influence that was the well says in determining that that is what abramson held and it is more stringent cause equally as well understand as you could under abramson well what the district court really interpreted it influences being is having some role or participation so really what she did was to say that if once that captain callow rolo initiated charges he played a role and you can't get rid of that role in any way and what stop is saying is there is an ability for the employer and there should be under title seven because you want the employer to be able to say wait a minute i don't i don't want people terminated because of retaliatory or biased animus i want to i'm setting up a procedure to make sure that's not going to happen and that when people were terminated it's because they did something that's worth the of it and stop says that if a person is terminated for reasons unrelated to the supervisor's original biased action the employer will not be influence whatsoever it is it is the role of the court and i'm sure i don't have to tell it to this panel to add a hearing to listen to all of the witnesses and determine who is credible and what happened so the fact that i in every case the charges are going to be initiated and so for this court to say you can't get rid of that taint on person makes those charges and he comes in and says the exact same thing i would suggest that that what might be helpful is there there are a few cases that were pretty stout that were similar types of panels the that the jury wasn't instructed in light of psalm which came out after the jury decided this case and therefore there's the city thin exactly but you couldn't have known what stop with the side that's correct and therefore is it your position now that you would like a new trial with instructions cite the numbers as the panel hears the same things that col rule says in his report in addition to that it's not an independent investigation the p p i system in one nine hundred ninety eight and one nine hundred ninety nine are different as they are now that's i pointed out the handing case which is this court had said was an advisory panel which it is it's an advisory panel it hears the evidence from the enema supervisor and in this record not did they hear from that individual who initiated the charges he also influenced the investigation is the sec checks into the discipline he wanted he spoke to the people as the record of them are you have are the promise akala will starts the events as a result of rape our nation calling col rule or memorial day on sunday in the morning at eight thirty and waking up his wife to say he'd like to speak the sergeant works foreseeable that the independent body is going to get involved if it's truly didn't have a body it also within the causation chain the p b i is exactly where col rule had to go so it was foreseeable that he was going to go before this panel of the panels made up of an officer of equal rank a lieutenant and a captain and they do have lists of lieutenants and captains that they can draw from the process and how they choose them isn't really known they just simply choose them the officer when the officers receive his eighteen's or the charges he has to elections plead not guilty or guilty if you please not guilty the department has two options now all of this is not in the record and the reason it's not in the record is because the city and you'll find us at page twenty eight thirty one of the appendix objected to this evidence coming into trial and that objection was sustained which was more than that they  says if they hear doesn't make them independent well i didn't hear well what would be your best argument that the city of philadelphia is at fault for carnations terminations there  or from a b jury's verdict i look to say to say they put the snowball in motion and roll it down the hill knowing what was going to happen at the end intending what was going to happen they intended for rape her nation to get fired for the charges intended for him to say they they rue the primary person who knew the process knew how it was going to work is the guy that had the animists he's the guy that influenced the charging body which is the police board of inquiry back then the charging unit was also the prosecution the evidence is replete that not only did call him how do we know that the police review board didn't make an independent to do because because there is you suggesting that he could not possibly shooting team for that that would go in front of the district attorney's office too however if it was determined that he might have violated a use of force policy in that shooting but he may have been justified in the shooting they might bring the officer up on a charge the use of force policy which would violate that rule and then it would go in front of abort the speed vi and the unique thing about this war is it is not a decision maker it is only a body that can recommend something even if they recommend no discipline the ultimate decision maker the commissioner reviews the record not the record created at the p d i the charge normally appear before that board they are not a charging unions yet in this case you did say something interesting before that the board only hears what the captain presents is that exactly the way the system worked in one thousand nine hundred eight is  these three officers because they complained about the way african american term minority police people were being treated i think is that's th correct none of them were minorities none of them were all whites which was the first question is when the circuit reversed and remanded was whether or not a white and visual would be protected under the retaliatory statute and they said we'll force it is that it's not race based it's based on opposition of condom so went back to that trial not the district court before it's a look they're not even within that protected class and the word they were opposers on the part the cut the protected class wasn't color in so mr carney officer carnation feels that and the other people that you represent the mckay were covered under title seven up to the maximum that they and but because he did argue his terror he did put his termination in as part of his objection then we get to the we get the p fact can understand your question moving past the procedural stuff on the court he he doesn't know really if he's going to get fired or what the punishments going to be he only knows the charge and he only knows what the guidelines from the investigate ray carnation that was the issue whether he says he called me up at home and what my wife and i want her correct he then starts his investigation determines what charges he wants to bring against ray carnations knowing the range of discipline he then can send that up the chain up the chain meaning to the inspector chief inspector deputy commissioner commissioner who all now see his report and what's going on and  other investigations the normal course of investigation the police department is to believe there's a violation and start collecting your facts and then finally bring the officer in and confront the officer we are friends what you have the ses basically the now it's generally closed the p p i is held in the police round house in the basement and they generally close it off peel the appeal is based on the right of the union to take it because this is all based on the clock the pardons of the officers in the pendant right to it is dictated on whether the union well decide that they're going to appeal and in addition to that it also depends on the punishment if if the board for example were to have a right to the evidence before the hearing you kind of go in and that's it whatever's there's there and that's it transcribed there yesterday record it in ninety eight and ninety nine they did transcribe it yes it's supposed to be recorded this supposed to be a record but ordinarily that record never goes anywhere anywhere and more importantly only because the p d i board the three reviewers are only recommending discipline they're not the final decision maker the commissioner who is the final this is does decision maker doesn't listen to that record he simply gets a white paper a white papers as is the statements of the proceeding well the proceeding was developed but today commissioner johnson does it to make a recommendation to the commission actually nothing more than an internal agency review that's why my brief i said this is not an independent body not only does this word get the statement they get to hear from cowell they're completely immersed in the enemas testimony and anybody who operates in front of that board knows that's referred to quote bozak angry just because there's a rule unwritten rule which misspoke myself by and in this case really this case isn't really the see where the stops apply because we simply don't have an independent body we have a body that's foreseeable to the animists officer and the body is not the ultimate decision maker it's just the wrong and the fact as a matter of law that as a matter of law the city's burden as noted on page five is to present the evidence at trial that this body is independent and and when i tried to do it at trial from which we made and the the i can't even understand how there could ever be a something set up by the police department that would matter how hard establish in the context of the trial that the board is in the body and that you would in fact were trying to prevent him from presenting any evidence concerning the board so maybe it's a failure from from your shin me but the proof is there  and i'm unfamiliar with that particular objection but what i do know is the evidence that was accepted by what was admitted by the court and that evidence was that this body had was was had three people who were not involved in any of the the proceedings who were the board that there was the opportunity to come in and present evidence to have representation i think the strip you're charlie said that he told a lot about what there was called captains level discipline which the different thing that's when a captain handle himself but in this instance it was not handled by captain cholera low and yes of course captain colorado is a witness because the charger deal with an interaction between them but it doesn't mean that he's controlling it or heaven forbid that this board i mean the one of the members of this board is an officer and his he's charged and being with this board to find out what happened where is the students where is the evidence  on the record of how the board gets sent off and all that we're told that they tried to put in and the city object that is that so i said that in there that the evidence commissioner who acted on the charge that had been added by the board and terminated mr carnation also since we are talking about boards and material  the notice of terminations indicates that there was a further appeal available as i think you had asked about appeals to one possibly to the civil service board which is what any city employee can do when terminated and as mr pura cheli made reference to there is an alternative available to union members of the fop to have their terminations reviewed by a but arbitrator selected by both parties and binding arbitration so not only was there the p p i proceeding but the p p i proceeding was subject to additional levels of review beyond that and did you appeal and no we did not appeal because it was mr carnation was terminated it was his if he wanted to appeal he could have filed an appeal he could have individually filed an appeal either with the civil service for you or for the thank you we will take this matter under advisement thank you saying matter thank you