for a f r s a whistleblower retaliation claim and try to challenge is only one the th element namely whether the protected activity was a contributing factor in the adverse action mr charney need only show that his protected activity was a contributing factor in the retaliatory adverse action not the sole or even predominant cause the term contributing factor means any factor which alone or in connection with other factors tends to affect in any way the outcome of the decision here the district court granted summary judgment in favor of defendants amtrak and columns after concluding that mr petrofsky has protected safety records were not a contributing factor in  against him the district court's conclusion was the product of at least four different errors st the court failed to view the facts in the light most favorable to the plaintiff's nd the court ignored circumstantial evidence that satisfied the lenient proved a political contributing factor for the court applied an incorrect burden of proof erroneous lee putting on mr trani the burden of proving intentional retaliation and th the court allowed the use of a purely subjective criteria as the basis for the adverse actions taken against plants with time i'd like to address all four of those errors st the district court failed to view the facts in the light most favorable to the plaintiff when it made the following three findings of fact st it found that mr truong e o did in fact commit amtrak policy violations when he used the word ugly during an innocuous conversation with manager hall and then later that morning during a meeting in defending collins's office when in fact the evidence shows that it was collins who was acting in a manner the nd finding of fact made taken against mr petrofsky on each of these improper findings of disputed fact the district court used to arrive at its conclusion that mr johnny is protected activity was not a contributing factor in the adversary actions taken against him now as to the finding the fact that there were amtrak policy violations the amtrak managers themselves as the record shows conceded that there was no actual workplace violence described as a heated exchange with collins and yet the evidence viewed in the light most favorable to mr trani osho is that during this meeting in mr collins his office mr patro nio was seated the entire time and was barely allowed to speak while it was mr collins who stood over him and yelled at him while defending collins addressed plaintiff in a threatening and disrespectful tone mr mr trani up did not support when these facts are viewed in the light most favorable to mr for trying to yell at the very least it raises an issue for the jury to decide not the district court this error was compounded by the court's acceptance of amtra use of purely subjective criteria as the basis for the adverse action as for the finding of fact that collins's motivation was free of any bias it was clear error for the district court to decide the issue of c and intent in employment retaliation summary judgment context in quantum vs angle x the case we cited from this circuit from two thousand and thirteen makes clear that the matter of motivation is left for the jury to decide not for the district court however to arrive at this decision that mr collins motivation was free of any bias the court again had to ignore facts that are ignored that mr collins failed to address and ignored the safety hazards brought to his attention failed to fix them it ignore the fact that mr collins expressed annoyance at the manner in which mr attorney a raised the reports to his and his supervisors level it ignored the fact that collins labeled the report able to prevail if the mere announcement of a subjective basis to take action against the employee is given deference by this court or it or any court for that matter so it's our position that in order to find that there was a policy violation there needs to be both an objective any subjective component all they have here is a subjective component mr hall says despite the fact that  petroleum despite the relatively innocuous behavior of the conversation that morning he says i feared for my safety well even amtrak's policy says that fear must be reasonable now the question of what's reasonable in order to fit that objective component is always a question that we reserve for the jury and not a question that can be resolved on summary judgment so it's our view further that the record is absolutely clear based on the testimony of that of the charging manager ms obey who sort of proudly announced that antrax workplace violence policy is purely subjective it gives exclusive authority to some managers to decide whether or not the spoken word or an act is a violation of the workplace of the workplace violence policy both and i'm sorry you're making your point that it m out clearly that has taken place here we also prevail if the district court failed to address the circumstantial evidence that is abundantly described five different varieties of circumstantial evidence that's abundantly described an improvement so while objective that the need for an objective standard in addition to the asserted subjective standard is supported by the case law cited in our br we think as a matter of law the judge correctly decided in intitled to defend its summary judgment i thirst element is simply whether the employer knew had i'm sorry had actual or constructive knowledge that in this case mr trump you know had engaged in protected activity if there was no act of actual or constructive knowledge then his claim fails period we want to get into any of these other issues sector the matter is that this court has said in the vast glass case which is not an f r s a case but i think it's still relevant to the test here that what this st element really means is that the plaintiff has to show negligence by the employer to justify saying ok maybe you didn't have actual knowledge that there was protected activity and involved here but you should have known that nd element that is is in play here and we think that authorized summary judgment was looking at all the facts and circumstances can they is there enough for a jury to reasonably infer that ok at least some piece of the adverse action was taken in this case determination was attributable to protect activity let's go to the st stage of the important negligence issue you can look at all the things that my opposing counsel put in his brief and everything he said and you're not going to find anything that would explain why it was that amtrak w s negligent for not appreciating that apparently there was protected activity that in the plainest view could be part of the explanation for why he was subjected to terminations they don't have anything they didn't raise it and any time and there's no reason why any of the actual decision makers in this case would have known  involvement of something called laid out all the fact finders here all the decision makers rather crche ober keefe who philosophy we all of them said you know what i don't know anything about protected activity and they don't have anything to rebut that all right so now the question is all but should they have no and i don't think they've ever get me and given us an explanation as to why they should have known the best i can i can put together is that their argument would be that collins is behavior at the nd session when according to patrolman you know collins was rude and talked over and of course that's the opposite of decision makers wait a minute should we check into you know why is collins being so aggressive with this guy well the simple answer is that if they had raised that question they would have gone to the gentleman who  in the room with both collins and a trunk you know at the time t j hall and t j hall in deposition basically was down the line in a green with collins his version of what happened in that nd session and it and anybody who reads that would conclude that of course he was challenging he was rude he was disruptive and he wouldn't let collins try to get  a resolution of this that what was one of his remarks according to hall what are you going to do about collins so the point would be simple they have to show negligence in order to satisfy that st element that i've mentioned and they don't have that there is no negligence that will get you let's get to the what's the evidence that there was any remote involvement of the issue of safety reports in the decision that was reached and we respectfully submit that there is nothing in the record that would support finding that and if there weren't a thing in the record that they could support that in any way then we still prevail on the alternative ground that the judge didn't need to reach which so i'm sorry to say that's true for the but the point would be that there is an obvious and big difference between me going to my supervisor and raising an issue which puts it on that when you get a blast of e mails does that mean everybody has the same obligation that they would have if if actually it was done in a traditional way you'd ordinarily make a claim which is go right to your supervisor and raise the issue with that supervisor and then follow up with the suit so look he's absolutely entitled to do a blast and frankly he did it because he's a local chairman you know sure he thought he thought that that was his job i have a quarrel with that but i don't think that by setting out a blast of emails you certainly refine protection for years self when later on it turns out you do something wrong that clearly has nothing to do with protected activity don't think on through labor relations and in the end or so into the r l a procedures it gets decided where you've got a neutral arbitrator and as your honor i'm sure you know it's from from reading the arbitration decision neutral arbitrators had no problem saying there's enough here there's substantial evidence here based on the facts that would support finding that many the object of chance then i will say our standard was an objective standard now well that's what i'm wondering because you started and your initial argument on the basis that the company is not know about the safety but then you said even if they if they are assuming you went on and that's why i'm wondering where the case is if if if they did know what your basic position is there's no evidence they didn't know correct and that's where the cases the task of the court under under the law in these cases is not to decide the ultimate correctness of the facts it's not to decide gee did the guy just say ugly or did he say ugly for you it's not to decide did did patro neo initiate you know the squabbling with law somebody were to say you couldn't possibly make that that finding you know i don't i don't think that's the job i think you're on your point that the company has well put it on the stand again as to whether there is constructive knowledge on the part of the company a safety issue is your point that there is no evidence to support that or room for the stock in it constructed so i'm not you're just saying there's no evidence to support it exactly that that if you said ok where's the negligence i don't know where they're going to look  district court to decide these issues as to what happened on november th and whether or not that's mere pretext or whether this is retaliation i agree it's for the jury to decide right if we'll try to be too quick to find agreement because at least on the issue of whether the company had a constructive knowledge of safety report it was quite clear there's no evidence and you know i'm going to give you a chance to tell us what evidence you think is  sure there's absolutely evidence in the record not only of constructive knowledge but of actual knowledge the key here is mr collins mr collins received the e mails reporting the safety hazards there's testimony of discussions between mr collins and mr trani about the safety hazards and then critically important it was mr collins who played the crucial role in bringing about the adverse actions against my client it was mr collins who suspended my client it was mr collins who initiated disciplinary charges against my client and it was mr collins who gave the critical testimony in the m track hearing that resulted in the terminations of my client so we don't even have to get into the question of constructive knowledge we have actual knowledge what amtrak's argument was before the district court was that the ultimate decision makers ms currie shoe ultimately made the decision upon reviewing the hearing transcripts to terminate my client that she was removed from the level of knowledge and that's where the cat's paw circumstantial evidence comes into play and we would we would strongly urge this pan to it clear the cat's paw evidence to show the connection between the one who initiated the disciplinary action and the manager who completed it by deciding on terminations that that connection is made with that category of circumstantial evidence that's known as cat's paw just a couple of other things real quick to say see my time is up the c v a does not address but that is the collective bargaining agreement does not address rights under the f r s a statute which provides my client for the no photo trial in district court by no means should any court by no means should the nd circuit court of appeals defer to findings made in c v a hearings when it comes to my client's right