good morning your honor and may please the court i'm going to miss robert hawkins for consolidated row corporation and i have reserved three minutes for a bottle of these thank your honor this is a petition for review of the decision of the administrative review board of the department of labor the case arise of the federal railroad safety act chiral asks that the quote grant its petition for review and directed the complaint be dismissed this case involves the application of the cat's paw theory of liability but it does so in the context of an unusual disciplinary process where the decision maker is not the same person who witnesses the misconduct or even holds the disciplinary hearing and there's a full discipline for all adversarial hearing before discipline is imposed y earth as a matter of law and its application of the cat's paw doctrine in this case there are three critical facts that support their position number one the decision to dismiss mr bailey from employment was made by conrail supervisor joseph price there is no evidence none not even an allegation that mr price harbor any retaliatory bias toward mr bailey second it is undisputed that the complainant in this case loudly challenge supervisor do you want to tangle with me when the supervisor tried to talk to him that conduct is admitted it is admitted that mr bailey said those words and he said them loud third the administrative law judge found that mr price based his decision solely on the fact that mr bailey challenge the supervisor to tangle with them and not based upon whether mr connelly who was the supervisor to whom those words were said felt threatened no party has challenged that finding by the administrative law judge or the cats port pirie an employer is not liable were unbiased super supervisor but mr praise makes his or her decision certainly based on misconduct that is either admitted were proven by independent means even if you assume that there was substantial evidence and we vigorously dispute this so you don't think we should be troubled at all by the fact that the evidence seems to suggest that price was not aware of what had happened during the illegibly independent exe investigation at all mr price had the transcript and read the transcript of the investigation in fact that's what the a l j relied on in read the transcript he would have been able to answer the questions about what was in the transcript whitney mr price answered the key questions about what was in the transcript and that is this was a straightforward case this involved an oral confrontation between the supervisor and the employee he was able to identify that the employee said those words it was admitted this was not a complicated case it wasn't based on documents and if you examine the record your honor as to the criticisms of what mr price was or was not able to remember the record does not support any sort of finding that mr praed he didn't read transcript or didn't understand it for example has a question about when he made the decision if you go back to the record citation for that the testimony was mr priest said i made the decision right after i read the transcript the next question was what was the date he said i don't remember i remember there was a letter behind in the letter he said yep that's the date so if you go back to the safety equipment but the railroad then holds a formal investigation the way you do in the traditional freight industry where it is in this case in doing the investigation the railroad identifies independent evidence of the misconduct like a videotape were soon that the worker admits what he did but we have here under the cat's poor theory unbiased decision maker can rely on that evidence and make it unbiased decision that's exactly what happened here the formal investigation prove that billy challenged the supervisor to tangle with him that's admitted it is a price testified in a real commonsense way it happened the incident happened it's not that hard a case as it's a is a disciplinary matter incident happened it does appear to me that you're right that there is no dispute about those words being said but at one moment there's the allegation that he and connally are face to face and that in connally says he's afraid that he's going to beat him up and then you find that another version is they were at least ten feet or more apart and he says this when he's leaving out a different door nobody in the room that heard this attributed any significance to it at all people have not been disciplined for saying or doing things more noxious than what this guy simply did and then the most inexplicable thing to me at all is he says he's trembling he's fearful he's going to get beaten up but then he takes the guy by the arm and he takes him up stairs to see the supervisor to make sense your honor is the number of questions or let me see if i can get them all let me go they were questions i was just suggesting to you that it's not quite as clear cut as you would like us to believe it is understood but again these mr connelly is the gentleman who to whom those words were threats said in the testimony at the elder hearing and the on property investigation he said nothing about being those to those that people turned and walked out different doors after that he would he went to the yard masters office he got himself out of the situation and the your aggressor the third and you're mr system of adjacent office is a busy really yard statement seemed to me that do you want to tangle with me is less of a threat than it would have been if he had said you don't want to tangle with me now that oh that with respect your honor billy is six foot four is a three hundred pound weight lifter well he's at the time angle with me can be answered by now i don't want to tangle with you were could be answered yes i will tangle with you and then you've got a real problem in the workplace what what is what way railroads instruct people to avoid safety hazards the way they keep people alive is to go in and give a safety briefing that's what mr connelly was trying to do that morning at whatever time did calmly say no i'm not wanting to tangle you i'd like to give you a safety briefing when you sit down and listen he didn't refer to a safety briefing at all he just made a smart ass comment about good morning i guess not and that's what precipitated this but your honor the evidence is in the could talk to you do you want to tangle with me missing a step he says good morning bailey keeps on going apparently doesn't want to talk to him and everybody knew that at which point connally then says i guess not or not or not or not  not and then bailey and kali have a discussion where he says you want to tangle with me that's that's what happens so you don't attribute the or not you don't attribute any significance to the or not in terms of or incorrectly making bailey mad that you're honor for purposes of this this case you have calmly and you have mr macintyre they were the officers who were on the property at the time they give evidence that bailey said these words they are said in the context of a disciplinary hearing where you have a it investigation you have an officer who holds the investigation you have union representatives who question both witnesses call witnesses of the room and then you have a transcript that goes to someone as to whom there is no evidence of bias he looks at the transcript and he says unions made the provocation argument  forth this behavior has no place on the railroad when you had to tell your supervisor do you want to time with me that's misconduct and that is worthy of discipline and that the best decision maker there is absolutely no evidence of let me ask you there good morning or not bailey actually respond that he doesn't want to talk to him unless it's work related matter and turns and walks out  fourteen your honor that's what supervisors do if an employee turns around and walks away from a supervisor who is there to convey the message of a safety briefing and the safety briefing here had to do with a fatality i'm just pointing this out in terms it is not ok for a railroad worker to tell a supervisor don't talk to me that's just not ok if a supervisor persists in instructing his because that his employee that's what he's supposed to do that's the way he gets information across it's necessary bally's not allowed to say don't talk to me any more than your walker could let's assume all of this is true when i read this first i thought geez doesn't seem like that's the kind of conduct that should be permissible in the workplace by the employee i agree with the point that you're making there but then when you read the response there is at least the suggestion that this is not necessarily a very nice and kind workplace in terms of the rough and tumble nature of the work and that there have been lots of other incidences that did not create a discharge people actually getting in fights and they didn't discharge that employee so that then leaves you to wonder whether there was actually some animists as a part of this that led discharging this guy based upon a statement if they don't discharge people for physical violence your time is up with a very big two responses number one there is no evidence that the relevant decision maker mr price ever treated anyone differently or better than mr bailey does one decision maker here number two mr macbean is the source of most of the evidence that you just restated make being admitted that the workplace is a lot different than it was back in the day this is before the the workforce has changed dramatically and the work rules of the work style has changed dramatically mcbain admitted that baited mr bailey i think that that's unquestionably true able j s findings of fact to which this court should defer are pretty clear that they had had several discussions they had had a discussion in january about a month before of this happened in which mr bailey had made a safe to complain and asked mr connelly his supervisor for a meeting and during that meeting mr connelly said to him something along the lines of if you're so i'm happy here why don't you quit that was mr bailey's testimony and mr connelly said that what he said was if you're so upset why are you here so essentially there were issues between the two of them that was the time according to the record i believe that  bailey said i really don't want to talk to mr conway anymore because he felt that mr condit was trying to get rid of him at that point and that was in january about a month before this happened the other point that was left out and i just want to make this clear on the record yes that i mean what sort a deal well standard is that employees can simply announce i'm not talking to supervisors anymore is there really the government's position well your honor right it i might have to agree that these people were not warm and friendly to each other there were certainly some issues of of anger management i think that mr bailey was well known at least to mr mcintyre he had worked there for twelve years was well known as a person who was not easy to get along with and who was somewhat difficult i think what happened though again going back a little bit he had been there for twelve years and he had had a clean disciplinary record so they really had there had not been any issues with him i think up to this point some time in tw testified when another a coworker got injured in a in a railroad feel a case a liability issue for the river and that at that point he was told by the company's lawyers that no one had been filing written safety complaints so there weren't any safety concerns so he took it upon himself at that point and this was in june about six months prior to the terminations or six months truck prior to the suspension i should say he started filing written safety complaints and he found about thirty five written safety complaints to the headquarters in a space of about six months clearly mcintyre was unhappy and mcintyre in fact said to him stop sending in those goddamn safety complaints macon you know i mean this is making everyone's life difficult because each of these complaints has to be responded to on paper and there's a file and it's you know i was being developed so mcintyre was very unhappy with bailey again for a few months leading up to this point so i think that both connelly and mcintyre had had confrontations with bailey  in the previous months and during each of those confrontations each of those people said to him you know stop doing this i don't want you to do that you know where you hear yourself you're complaining all the time and so bailey was you know not happy i think everyone agrees that the situation was a little bit tense between them but on the other hand there's no evidence that bailey ever refused an assignment he specifically said in this is in the old days decision i believe it both page fourteen and page twenty nine he specifically says she the judge the l j specifically finds that bailey said you know don't talk to me except about work related not hers and so if connally was actually there to give a safety briefing which there's no evidence in the record none whatsoever that that's what was happening i think bailey you know was ready to listen in fact bailey was getting ready for work he walked into the lunchroom when carly spoke to him he walks away literally walked away walked into another room made a phone call his assignment for the day went back into the other room all of this time calmly is talking to him basically continuing to talk so i think it's clear as your honor has indicated that connally was the one who instigated this confrontation calmly was the one who was deliberately argument is this continuous discussion when they're going in and out of two rooms unless i just missed that in the record there's really only two things can only says good morning or not i think there may have been some additional words but it is essentially it and you say there's no evidence that he was there to do a safety briefing that's what he testified is that you know when you're on it again i want to just be clear on this mr connally testified in two different proceedings he testified under oath in front of the l j for the secretary of labor and he gave one statement about what happened and then on cross examination he gave some additional evidence there was also a separate proceeding page fourteen on february eleventh two thousand and eleven mr connelly said he went to the lunch room to brief his crew on certain railroad riscos hazards following a recent fade to fatality half of the page  talk he admitted that he never actually told the complainant why he wanted to talk to him so it may have been in his mind and that was point yes making this harder than we need to make it sorry making an argument that's not never told the complainant why he wanted to talk to him and that again that's a key facts because i think that if he had said that we would have a completely different case there would have been some different actions i'd like to ask you to also look at the edges decision to page twenty nine where she finds that mr connally's description of the incident lacks credibility and mr connally attempted to exaggerate the events that occurred so she just did not believe what mr connerly said she says he instigated the patient she says she doesn't believe that he felt threatened you know there's a number of factors here that the judge relied on she did not rely in any way shape or form on the arbitration proceeding and we don't believe that that's even in the record before this court so so we don't we ask that you not to for take any notice of that other testimony because not before in this case the n g a found that mcintyre was not credible she found that connally was not credible and she found a mr price who was allegedly the ultimate supervisor who made this final decision to terminate mr bailey was also not credible and i just like to make one other point about the catspaw issue the only involvement that mr price had was after these events occurred he was not an eye witness and in fact he testified that he didn't even read the eye witness statement by mr bain which was in the record which was an exhibit to the transcript that he said that he did read mr b was there who saw the whole thing and he said that nothing unusual occurred he also testified separately that other issues incidents that occurred that were much worse where people actually had yelled and physically threatened each other in that no disciplinary action was taken so mr prince is knowledge here of other than the fact that he was very close to mr macintyre they've been friends for twenty years and shared an office with mr macintyre mr mcintyre was his boss all of which the judge found  evidence that price actually did know about the safety complaints and if in fact he read the transcript which he said that he did he would have known about the safety complaints all of this i think is evidence that mr price perhaps didn't have enemas but he certainly had knowledge and i think it's pretty clear from the record that mr macintyre and mr connelly both of animists against mr bailey specifically because of his filing safety complaints he was being a nuisance he was being irritating he was making their life difficult so we actually don't endorse employees refusing to talk to the supervisor absolutely not but we do believe that you have to show and this is a case of first impression in the circuit so this is going to be an issue that that we want to correct you have to show that the protected activity in this case was a contributing factor in the suspension in the decision to charge mr connelly with the threat in violation of the workplace violence policy and in the ultimate terminations decision so we really have two or three different adverse actions and mr price again is a little bit separate because he was only involved in the final action the terminations so even if you leave aside the cat's paw theory of who made these real decision and why were these decisions made under this statute the protected activity has to only be a contributing factor has to only be one of several reasons it's a difficult question here sara not not whether he got it right or wrong but whether there's substantial evidence that supports absolutely your honor and i was actually very surprised my colleague did not make that point because we believe that this entire case can be decided based on substantial evidence if you will some point that helps you not him exactly that's exactly right it would make the argument that's correct the judge made findings of fact here we think that those findings in fact are well supported there was a hearing there would was cross examination there was i witness testimony there were there was evidence in the record that to support the findings that she made which is that the company supervisors were not credible the company supervisors did have knowledge of the safety complaints and that the safety complaints contributed to the other point that i would make is that under the federal railroad safety act even if it's found that the safety complain contributing factor to the suspension and the and or the terminations conrail could have proven by clear and convincing evidence that they would have fired mr bailey anyway and the judge i think i did an excellent job of going through the evidence of pretext i don't know if you want me to go through that evidence again but she found essentially that there were shifting explanations that there was still ity that there was animists these people were irritated at him they expressed their concerns you know about his safety complaints and asked him to stop filing the safety complaints all of this happened before this alleged confrontation and she also found that they inconsistently applied their own policy i thank you counsel thank you and  railroad operations railroad and public employees and the public at large were early any where the trains operate the reason that this law came into effect is that before the the amendments of two thousand and seven the grievance procedure under the collective bargaining agreement was that the procedure whereby if there was a an employee concern that he was being harassed for safety complaints he could bring that the f r s a congress an act that the amendments to say no we are delegating this is already to the department of labor they're the ones that are going to investigate it and they are the ones that are going to enforce it and the the framework then is the burden shifting that you apply in the f r s c which is once the plaintiffs show o excuse me the complainant shows that there was a contributing factor to the adverse action protected activity was a contributing factor then it's the employers burden to show by clear and convincing evidence that they would have taken the same adverse absent any protective activity you understand the concern that somebody might have about an employee claiming there and knock elating themselves by filing safety read ports that event allows them to go on and violate the company's workplace violence policies absolutely your honor and with that though what i would say to that is not exactly a shining example here of workplace safety enforcement team well your honor with respect to the safety enforcement team i would beg to disagree with you on that i would agree with you that he's not as maybe in many circumstances not the most civil individual but the f r s a is not a civility code it's about the law and you what what we must remember is that the thirty five safety complaints that the complainant filed were all found to be well founded and what happens and the court has dealt with f e m a actions in the past what happens when someone is injured on the job the first thing the railroad does is where you have to prove notice we don't have any notice there's no written safety complaints that's what he don't want safety complaints those safety complaints are forms provided by the railroad they're not something that mr bailey just filled out on a piece of paper it's a form that they provided if they're not filled out someone has an f e l a action what happens is the railroad comes into a witness and says look we have all these forms you never filled one out but when mr bailey fills the then they go after and that's what they did here your honor the a l j found that calmly instigated this he did say to mr unger who the male j found to be a very credible witness that compound that bailey got in his face and was nose to nose to him bailey was in the other room when he said to calmly do you want to tangle with me the judge did not believe connally did not believe macintyre she believed that the filing of safety complaints and an on duty injury that also happened in august of two thousand and eight when mr bailey reported that mcintyre pulls him up to his office and says nothing about the on duty injury but says you know by the way i'm a month ago a customer complained about that's what he does after he the f r s a purposely imposes a very strong burden on the railroad the employer to show by clear and convincing evidence that they would have taken this same adverse action anyway and with respect to your honor question about the positioning of people mr connally was in a room mr bailey was in the other room there was a hallway where they could see each other when mr bailey said twenty feet away or so do you want to tangle with me at that point calmly although he said claimed that bailey said it twice no one else said he really said it twice do you want to tangle with me no one else saw bailey get closer to him and say it again but at that point conley picks up a foam and starts walking towards bailey to get out the door where bailey is bailey comes into the room and is walking off the connally's left someone that's really in fear for their life and that's what mr connerly stated i was in fear for my life actually walks towards the person who supposedly threatens him calmly continues to work for the rest of the day this happened at seven fifteen in the morning calmly work till five o'clock in the evening he testified and there demonizing bailey but trying to say look we're all in for a life that was a a witness that came in and said he's been in fear of his life by mr bailey for the last twelve years yet he bet on football games with bailey every week it's an attempt to demonize bailey and attempt to send a message to all of the workers who would be prompted to file legitimate safety complaints if you do that this is what is going to happen you my time is up your honor thank you thank you your honor the burden shifting provisions of the air force say the complaining needs to prove that his protected conduct was a contributing factor here in mr prices decision because of mr price absolutely no bias whatsoever he is an unbiased decision maker he makes his decision based upon objective conduct that is admitted in preparation for argument i came across your honour's decision and roberts vs princip i two eighty three fed appendix three twenty five remarkably similar case what you have here is a classic example number one there is no contributing factor factor toward mr price's decision he takes a cold transcript never had met bailey before looks it would be alien admits that he said and says that has no this conduct has no place on my railroad then you have the clear and convincing test did conrail prove as a matter of law by clear and convincing evidence that it would have taken the same decision in the absence of bias will in this case you have a perfect laboratory conditions example we don't have to guess what mr price would have done in a lot of contributing factor cases you have to examine similar misbehavior and what the company did where you have admitted bias playing into the situation here you have an unbiased decision maker who's given the transcript and he makes the call you don't have to no evidence and no finding of bias the only issue is whether he knew about the safety complaints in the o j said because mcintyre gave them the reports back to bailey and that was in the transcript that he had he she then said well he probably did know all right let's let's lay that point to cite whether he knew or not doesn't matter there's no evidence of bias this man was in north jersey for his whole career here he comes in about two months or three months after bill he's taken a service he never met the man of course the entire point of the catspaw theory whether you like it or not is to in a sense in fact the unbiased decision maker with the bias of the subordinate and that's where the admission of mr b b he said those words that's where it comes in if the record is clear he said those words he said them well and that but that doesn't answer the question it seems to me if you if you frame the question to say w truly unbiased decision maker actually have fired somebody for having some of those words that's the price pricks that's priced and there's no evidence of bias no