very confusing case and in terms of for several reasons you have the statute that's got an a b and c right correct and on summary judgment the judge found that the plaintiff could not go forward correct correct as that the department had shown good cause right correct however the district court allowed then the go forward forward on a and c correct right now we don't have any montana case law that says ok so that means that basically good cause can defeat wrongful termination but it but the implication seems to be from that that could cause doesn't defeat retaliation and i think it's public policy or something on sea right and so then it goes to trial and then the jury finds retaliation and the search and and so based on that statute if it's got a b and c it would seem to be that i can go from there to say that retaliation is a separate cause of action from what's alleged and be the wrongful termination right that could be one possible result yes well we don't have and we don't have any case law from montana that says that just because there's good cause that that defeats a and c there's nothing out there that says that that's correct you are right and so then it goes to the jury and the department wants certain instructions on how to you know what does good cause mean relative to retaliate and the court doesn't g anything and so because the court says that well i mean from that can i infer that the court is saying that good cause does not defeat retaliation and public policy correct the instruction argument that we had we asked for a mixed mode well if the let's see if the montana supreme court had sad in a decision that we could define that could cause defeats retaliation in public policy then that would be the end of it right yes that would be true that question actually that's good but obviously the but the district judge didn't find that because the district judge said no you have shown good that the department has shown good cause but retaliation and public policy can still go forward and i couldn't find any i can't define to divine what montana would do about how does good cause factor into retaliation and public policy i don't know if anybody can honestly your honor and that specific question that you you know focusing on you solve this case if i don't know the answers to that because if in fact good cause does bear upon retaliation in public policy then it would seem that the jury would have to know how to factor it in and the jury never got anything on that right that's correct so i would say that right side on the other hand if montana would say that good cause if if defeats all of that then you don't you know then you don't need an instruction and the jury wouldn't have needed something so i think you know how do we resolve this and why was  think honestly the path forward here is probably certification to the montana supreme court to have the question answered as a matter of state law i mean we're we're really here arguing about whether how these three prongs interact with one another and that is really the crux of this let me just i have several questions for but i'd like to follow up on something that the judge telling him has been raising with you so if you assume for a moment that each of these three provisions in the statute are separate independent causes of action that does not mean that when she goes forward on a retaliation claim that the defendant in your case the department here could not offer some reason why they terminate are correct correct and i'm as far as i know where your honor we can go she even at this department can get up until it's version it's story about what happened right that's true and so you could have been told the story well the reason why we let her go somebody gets up there and she some representative from your from the agency and says we let her go because she was identified as a troublemaker by the feds in their invest in their report and that's all reason why we let her go right right that's true and we are you so so if you have a retaliation claim you can get up and offer an explanation absolutely and i did alluding a or c doesn't preclude it but it doesn't also prevent you from getting up and offering your story about what happened here true and we did that and i and the argument of course that we made was that it should trigger some sort of  a mixed motive or burden shifting analysis if as you enter jury had believed that the reason you fired her was because the feds were threatening to paul you know i mean there were a number of things that were alleged against her some improper behavior with clients that that there's this letter from the feds that says we're going to if you don't get rid of this woman you know we're going to pull all the funding and that would be if the jury believed that that's the reason you terminated her that could mean that they wouldn't that you didn't retaliate but they could also believe that you know that that may be part of the reason that you that you did terminated for that reason but you can still retaliate so it's  hard to that's that's one issue of course that you know and i think that's why a mixed mode of instruction would have been helpful in this case but the second part of it was lies there out there to say that that's what you do to i mean california would have been easier yes and in montana the question is as you have noted unanswered and i can't i can't divine what their answer might be i think what the court montana supreme court would do based on what is done in cases of this sort of arriving in the rising under montana's version finds no what they didn't discriminate against you but they did retaliate against you and they prevail on the retaliation and but we don't we don't know in montana we don't and that's why i think sort of your recommended certification that's would be my recommendation  if you have a finding of good cause which we had here at the summary judgment stage whether or not then you can also prevail under section eight or be under the wrongful discharged at you so whether if you have good cause does that and the  yes so that wasn't what you see is what you want to say yes not he was i was confused about the order in which they appear in the statute but basically the retaliation problem we're saying is foreclosed by  the the determination at the summary judgment level that good cause existed to terminal then if the montana supreme court wouldn't take it then you're saying you should prevail because the fact that you prevailed on be a good cause is a total defense to retaliation and public policy that would be our argument but the second argument is that the district court erred in the jury instruction stage so montana defines public policy very specifically has to be an administrative rule statute or a court decision that affects the public health safety and welfare so in the montana pattern jury instructions there's the jury instruction that says sort of lays out what the statute says and then there's a second jury instruction that comes after in this is laid out my reply brief that basically says  and the public policy that you the jurors are to consider is is spelled out here judge christianson rejected the jury instructions proposed by the plaintiff in this case which they contended said with the public policy that  was at issue now our argument to that was that the statute was a was really a funding statute it had nothing to do with misleads ability to report or act in any particular way so it really didn't feel that the clients were getting the services that they were entitled to yeah you know it was really one specific client she thought that the decision to place the client on line of sight supervision versus a more direct care was erroneous and that's where the whole issue sort of erupted that caught you know which brings us here today can i take you back to this preclusion argument that you made about having a summary judgment you prevailed on the good cause of course when did you actually really raise that argument before the district court see it to your no no ok so then so then you moved to trial and you filed the trial brief correct we did so raised in the trial we raised it and you suggested to judge christiansen that well maybe you want to invite briefing on this and maybe you should do  raised the fifty a again and you said we're making on the same motion the same basis after week after the defense close right correct and he said no he said no but you didn't file a fifty b we did not file a fifty motion that's  doesn't that foreclose that argument again not the way i read the rule fifty the line of cases so if the challenge here were to the sufficiency of the evidence or that the plaintiff didn't put evidence on a trial that support the claims on why you fired her right correct you say you put all that evidence on anyway even though she didn't have a wrongful termination claim against you so and when you argue the case what did you argue did you argue well look we had all these reasons for terminating her so we couldn't have retaliated against her yes in addition to that we had all kinds of reasons before the act so she you know the act from what she rises claims that retaliation rose you know occurred after a huge string of  that she has she had to refuse to violate a public policy or i'm stumped on the second one i it's not coming to me she basically has refused to violate a public policy or file a complaint about the department's violation of the public policy which is goes a second issue which will know what if a market in retaliation lies did they argue the retaliation with her fiery that would be yeah in the discipline that occurred after she made the complain about the one client and which was not firing hard which was not so i mean essentially all the evidence is out there and the jury actually just believed they can't i infer from the verdict that they didn't believe that you had good reasons for what you did and they did believe that she satisfied the element of public retaliation and public policy and you can infer that in this case your honor because the instructions were so mangled by the time they got to well if they had believed what retaliation if they had believed in the case you put on in the way that you argued it you would have won right theoretically because well i mean i'm just trying to it doesn't sound like the evidence would have been any different regardless you all put you all put it all out there i would generally agree with that yes so but so if the instructions from your perspective have been correct then they might have factored in your reasons correct so it's really an instructional or argument fundamental and i find it hard to believe a jury wasn't thinking about if the if they had believed that you had really good reasons to fire her that therefore you didn't retaliate against or proffered on the retaliation issue were really modeled on the ninth circuit sort of the model instructions of the ninth circuit has on mixed motives or the mcdonnell douglas analysis on the retaliation issue and i'm  good morning if it please the court frederick sure would for the appellee elizabeth pritchard sleeth in the transcript she is usually referred to as libby sleeth she was fired by the department in twenty eleven there was a five day jury trial in twenty fourteen the jury came back with the rezoning verdict for my client your honor since we're not asking the court to do anything other than to confirm the verdict in the judgment we're not asking for we can still  disagree about the good cause ruling without having to do a cross appeal but the point i think is and i was certainly willing to talk about state law but this court does not have to certify any question to the month when a supreme court because this case can be decided entirely according to the federal rules of civil procedure   jury instructions that's they cannot seek redress about any instruction other than what the court gave  trying to get at the point now how artfully they did it but it seems that they were trying to get at the point that if we have good reasons to fire someone which you found which the court found in the summary judgment we should be able to ask the jury to determine did we fire her because we were retaliating or did we fire her because of the reasons they were good and that's exactly the argument they made to the jury  and that's i think had no instruction to tell the jury what do you do with that i mean like in california they would probably give a mixed motive or something well this isn't a discrimination case and that's where the makes most of instructions come from now what the jury was given was something even better for the defendant the jury verdict and instruction said asked the jury did plaintive prove by a preponderance of the evidence that she was fired in violation of wrongful discharge act if so go to question b question b did the plaintiffs prove by a preponderance of the evidence that she suffered damages as a result so the burden but my point on the mix motive is they they could argue to the jury and they did that hey we got less of whether there was any retaliation or not she should have been fired anyway because she broke all these policies she didn't suffer any damages from that that that was the jury was instructed in that manner that's been better for a defendant than a mixed mode of instruction is  discrimination law in mixed mode of instruction will transfer the burden of proof to the employer along the lines of well if you find gender discrimination for example as in pricewaterhouse but the employer proves they would have made the same decision anyway then they can the scape liability for for damages the of the  in violation of good cause and there was a particular statutory definition of good cause it did not limit us and the district judge specifically said this did not limit us  from arguing firing in violation of the retaliation provision or firing in violation of the employer's own written personnel policies which  think seems to be an argument that the appellant is is no longer pursuing at least in this brief let me let me just i want to make sure i understand your argument so at the trial when they got a chance to put on their case they they offered an explanation for why she was fired correct yes your honor ok so now when the judge gave the jury instructions and the verdict form how did he guide them or did he offer any guidance to them and how do you evaluate the department's reasons well the instruction was that the plaintiff has the burden of proof and if she hasn't convinced you that they fired her because her contacts retaliation which in this particular case would be contacts with disability rights montana or if she hasn't convinced you that she was fired in violation of their personnel policies then the defendant wins but we convince a jury perhaps because the defendant didn't put on key witnesses for whatever tactical reasons such as the superintendent zeke who were supposed to and who was allege saying is that the only reason why she was fired was because she was retaliated against there was extensive evidence put on as to comments by those those comments made to her did they put in evidence of that hey look we got this letter from the federal government saying if we don't do something about you we're going to lose all our funds yes it was extensively discussed and i'm glad you brought that up because it's a very interesting part of this case in august libby august of two thousand and ten libby was accused of trying to incite a client to run away from the m d c the institution and go live with this is a statement the client made and the client you know less bless him he's a very limited person with fixed delusions livy vehemently denied that and at the trial put on a lot of evidence as to why that was not so and the jury got to listen to a tape recording of the client and so forth they got to see the evidence that the person who decided that yes libby actually did this was katherine seek superintendency could also have made all these for this she gets a three day suspension the feds come next spring c m s and they say a three day suspension are you crazy you know if if somebody did that to induce the client to run away with them then then they can't work care anymore and therefore you know she doesn't work here him her and the curious thing also that i think was of interest to the jury is in may of twenty eleven the the institution the department doesn't tell her doesn't tell libby all we're going to fire you now for the other thing you were punished for last august they give her a whole new list of bogus reasons why they're firing her a b and c she shows that these are bogus reasons said she never did these things and yet as the jury heard at the trial they had already decided prior to prior to making this the alleged decision on a b and c they'd already decided to fire her because of their their funding problem with c m s so really what happened is libby's career wounded through retaliation back in august of two thousand and ten and it died in may of twenty eleven because of the retaliation because of that wound that was imposed on her because she was she was intending to comply with what she saw as the provisions for as part of the i am so as part of the case you presented evidence fighting this situation with the special needs client yes ok and they they said no she did that or they gave her honor and so if the jury had believed that she did did they argue where they were all these things is that basically how the case was argued yes sure on it was a it was a five day trial and there was a lot of evidence from different people as i say so tell me the elements of retaliation advocacy system that is set up by law by federal law that all states have to have these and everybody agrees that they have to day after have access to the clients and they're supposed to be advocates for the client's lavey believe that and so she was using d r m for example to get a woman who was sexually assaulted you know better treatment to get closer supervision of a client who was a cutter and had was in danger of of cutting himself that weekend and they resented that her superiors resented the additional money that it cost them they resented the addition of trouble it caused them they resented having somebody looking over their shoulder with with d on him and so that's the public policy now there's a very interesting case the important case is fennell versus mountain west bank as far as state law is concerned and it meant in that case there was no there there was not a good cause element because it was preempted by federal law but a law about how good cause is to be factored into a and see what is montana law on that what do we have what we have is a large number of cases that say those three separate ponders and you can look at at any of them we don't have a specific case where there was good cause a good cause was not found but about retaliation was allowed to go forward but they got and the abuse of discretion as you know is the standard and he certainly didn't abuse his discretion to refuse that instruction furthermore there's nothing in montana law had to really supported that instruction at the time that's correct no he couldn't nobody could point to a stand as a grazier statute or any they they tried to use a regulation of the human rights commission which doesn't enforce this law and that even misstated the regulation because it didn't talk about a shift in burden of proof finally i would say as i noted in the brief they can't appeal instructions because we talked about mix motive they challenge another instruction but they agreed to that instruction the one that went to retaliation they didn't object to it in fact they stipulated to it it was a general instruction the plaintiff offered to dish and all instructions to talk about the law as a question acted to those additional instructions a court refused to give it the instruction went to the jury with that issue went to the jury with an instruction both parties had agreed with i think it was instruction twelve how did you want me to address the retaliation think i ironed that out but let's just assume since there wasn't any there wasn't any montana law out there on mixed motives or whatever why did the court abuse its discretion and i'm not giving it and then really it sounds like all the evidence came before the jury and essentially they believed pallies side of the story and not your side of the story so how is it how is the error if there was an error why is it not harmless is not harmless for one thing because there never was a public policy instruction to the jury that explain to the jury what exact public policy she was retaliated against her had for violating this kind of addresses the final argument that mr sherwood made which is that well he argued what the public policy was and are you saying as a matter of law that was in a public policy yes that's exactly what we argued and judge christiansen agreed that it wasn't a public policy that could be put into an instruction that was offered by the plaintive and so that what we have and what and she went as a matter a lot that we should of i mean i think the at that point that the good cause fighting the case should have been over with the inability to identify the public policy that she had claimed we had violated or that she was complaining of a violation of that instruction i couldn't say that they they they knew for certain we do you are in witnesses were part of the trial i don't know to what extent the jury knew that d r m was this agency that existed so that we could get to funding is the correct pardon it does exist under montana law actually exists under federal law so it's a requirement to have these protection advocacy organizations under federal law for the state institutions to read receipts medicaid funds no the federal government provides the funds so they will actually work for the federal department of health and human services to do this sort of it's an outside source like an ombudsman by the federal government pardon does montana public policies extend to policies that are established by the federal government under the definition of public policy in the wrongful discharge statute i think it would however the statute that creates the protection advocacy organization like the r m does not does not in view a person like misleads matter submitted thank you counsel appreciate your arguments