number one six thirty five one robert shea's versus u s postal service at all retaliation standard is different rabid applied to all of it and it doesn't seem to distinguish more of the different business well that's true in the sense that this court has said there is a retaliation claim under after monday available from section twenty six fifteen it won so the problem here is if you've got it in front right for a cause of action that this court said all right we're going to have a cause of action but we're essentially going to meet a higher standard of proof and that we're going to require that the decision maker have knowledge of the underlying protected activity now mr chase is saying well you should go further and say that the dissolute decision he doesn't have to have that knowledge at all because that's really what interference is about i think what she's saying is you just have to have the same powers because you'd be held designated as such but perhaps a guy was in the hospital with a serious heart condition if you just asked me i would have told you that's where the courts say we look at that as an interference claim and so it doesn't it doesn't matter that the employer in that situation didn't know that the leave of absence was a family protected because that is a prescriptive right the employee has the right take that leap as opposed to the situation where the employee doesn't say i fired for the absence person takes an f m l a leave the after it's fired in the employer says you're fired for some unrelated lawful some performance or misconduct reason then the issue for the decision maker as well which was the real reason and that's view is that's an unwise and retaliation theory again it comes from the same statutory language but that this that's how this court and others has distinguished between the two and said in that kind of a situation the decision maker must have known that the f that the move taken from lake protected in the first situation does not need to know th retaliation but it was not to appear because the decision made you didn't know the underlying conduct we absolutely chose would not be a factual finding that the decision maker knew that mr chase was had taken his compensation leave and he made a factual finding that that fact that he took brokers compensation that he took a leave of absence was and they did factor in the termination decision and i think the thrust of the plaintiff's argument is that's really unfair there's sufficient appeal to that argument the problem is really what he's angry about is that this was workers compensation retaliation and congress has decided in enacting that law that gets federal employees workers compensation rights that retaliation is not unlawful we can debate the merits of protection of it right now that i have it i guess i have to just keep telling people that i have to leave if i want to be protected against being punished pretty well no in the ordinary course at church without said this these were unique facts fact finder finds that that belief alleged belief is in good faith and reasonable and in that case i would based on the facts that you just stated i would say that's not reasonable if you don't have any reason to believe in this case for some employee is absent there's no reason for an employer to assume that that is also ethanol they protected at all the employer knows that the person is out on sick leave but that's all he or she knows unless of course the person has also  years all the sudden sleeping on the job sick and negro sleeping on the job the employer says you need to come to a meeting he doesn't show up why because he's busy trying to commit suicide the employer calls the person the sister says my brother is extremely appeals properly reversed that saying look that should go to a jury to say whether the employer was on notice that was an interference case not a retaliation case whether the employer was on sufficient notice that this person needed leave to take care of a serious health condition which would be protected under the ethanol way and that's why knowledge that is not always required you don't have to have knowledge that the person requested and i case he did not request officially definitely the interference case but retaliation is different because you have to prove causation and to prove causation he needed retaliatory motive or animists so you need how can a person retaliate against somebody for doing something that he didn't know about really big i guess there would be just like real we sometimes say if you employer doesn't know where he is fires and he says my wife gave birth to premature twins i've been in the hospital twenty four seven i need this time off it's maternity leave it's covered in the family can't fire him for that reason that's a private issue of his prescriptive that's prescripti both games are played here we've got to look at the fact that the only claim on appeal is retaliation and hodgins this court said yeah it comes from the same statutory language it's a little weird it's implicit but we've got to analyze it differently you need to have knowledge of the underlying protected right or honoring this court has held that under titles title seven that the decision maker cannot have retaliated against the person unless he or she knew of the person's underlying protected activity protected by that statute  his i think somewhat understandable frustration that judge would like me to factual finding in his favor that the leak was a motivating factor in terminations decision and had no legal liability putting aside the motivating factor causation standard was a separate issue  it comes down to what he's really mad about is that it doesn't prohibit retaliation for under the federal workers compensation law for federal employees that's what he's mad about that's where the remedy should have been