for the city of houston primary issue that brings us here today is the jury's answer question number two the jury found the chris morris citation for untruthfulness and the accompanying ten day suspension would not have happened but for his father manuals and more and or chris himself and gauging protected activity and two to affirm that finding the judgment based on that finding the court has to hold that the cat's paw theory of liability is viable but for title seven retaliation case after master and perhaps it is our position is that it is not but because the evidence doesn't support the but for finding there was a break in the chain of causation by independent investigation and there was no evidence that the people who were the decision makers imposing the the ten day suspension were rubber stamping any recommendations from below  i didn't mean to start talking while you were still right yes yes indeed it was but it wasn't a rubber stamp because they did an extensive investigation on their own and so it might be that mystery is the more  presented evidence that there retaliatory animists of his supervisors in the crime reduction unit could have been a motivating factor but that's not the standard for title seven retaliation claims after nasser and so the a motivating factor would not be but for causation so even if the catspaw theory is still viable it doesn't apply here because there's no evidence to was the reason that the people much higher found that he was untruthful and should be suspended for untruthfulness to make sure i understand the context of this argument you're not challenging the jury instructions in any way on this cruel they were told how to analyze the evidence on this point in a way that may be right maybe wrong but it's not a challenge here so it's strictly a sufficiency that the jury could not have looked at the evidence regarding what these three supervisors who are me there were what their role had been and whether it was the not just motivating but was in fact the cause but who are cause of the termination it's a pretty high heel you trying to climb what is missing that the jury cannot feel in reasonable inference right ok this takes too many inferences there's there's speculation  inference but not just one level of inference which is permissible so there's inference stacked point and it's because of the diff the distance between the people with the alleged retaliatory animists and the people who are the decision makers and the process that went on in between here's here here's what the relevant facts are chris and more was in this crime reduction he was there about seven months and then he was transferred out of it in may of two thousand and eight prior to that his father who was also an h b o officer manuals and more had filed a lawsuit about six months before that against the city of houston and around the same time that chris was transferred out of the c r u manual his father also filed in the e e o c complaint he's alleging discrimination by the city against hispanics and against himself personally chris got transferred out of the c r u he said that was in retaliation for his father's protected activity chris then later joined his father's lawsuit the jury found that that was not retaliatory sort of these people who were his supervisors and c r u had no retaliatory animists pertaining to transferring him out of the c r u so that's not even before the court and that's the thing that is really that the tightest was after chris was transferred out of the c r u his father filed a complaint with the internal affairs division complaining that about the transfer out so the internal affairs division then took over and started an investigation to see if there was some discrimination or retaliation going on in the transfer that was a very extensive investigation and they talked with twenty two witnesses including manuals of more of the one who filed the complaint that talked with krista more of himself they talked with twenty other people at least and i've named all of them page five of my opening brief and given the record site for this so they talk all these people they reviewed hundreds of pages of documents and in the course of this they can they concluded that christopher zamora had been untruthful in three areas so it's not like that isn't what they were going to look to look at this this was a situation in which the investigation just turned this they said christopher moore has said that he was untruthful in three areas he'd take he's secretly recorded a conversation and they ask him where he got the tape recorder and he said he got it in this one officer who said no i didn't given that th ey decided that the other officer was credible person more was not they recommended that he be cited for untruthfulness without a crime so there was another instance in which he said that he signed he signed something under duress and the dress example he gave was that they didn't that his sergeant didn't announce that he chris had received an award for being patrol officer of the year and he had said something good about someone else but didn't say something good about chris and so he felt like he was being slighted and he considered that to be derisive well during the investigation they learned that that award wasn't until two months after he was transferred out of that unit and so not mentioning that a word couldn't have happened in that time frame was the wrong time frame and so they said chris was untruthful about this and thirdly they said that chris complained that he had been  transferred and other officers had not been disciplined for worse things that they had done and he didn't even know about the discipline those other officers had and they found him to be untruthful in saying this now i'm sorry the investigation in internal affairs internal the internal affairs and we're not even yet up to the administrative disciplinary committee which is the still level above that and then the chief above that is the one who ultimately imposed the ten day suspension and so obviously independent review committee the administrative disciplinary committee consists of a combination of police officers and supervisors and four independent citizens and so that would be closest to what you're referring to as an independent review committee and that's the one that reverse finding you know  me let me but i see what you are talking about now no he appealed to an arbitrator he appealed applying to an arbitrator and the arbitrator then said this isn't a proper finding of untruthfulness and so that's that's who it was i apologize for not understanding what you were asking but that's that's exactly right no so so this internal affairs division and this investigation that was headed up by sergeant guard and internal affairs interviewed twenty witnesses they reviewed hundreds of documents to see if there was some discrimination otality action against chris and in interviewing chris himself they found these three instances that they believe he was being untruthful now to understand how they get to this determination that he's untruthful we need to see it in the context of general order the h p d general order two hundred eight on truthfulness and it says an officer shall not be untruthful either knowingly or recklessly and when the arbitrator later reversed the ten day suspension for untruthfulness and said that they should have found him to be untruthful the arbitrator said that these aren't really clear indications of intentionally misrepresenting but the general order also includes recklessness and so each one of those instances could have been understood by the internal affairs as reckless at really i think as a matter of law this isn't even up to a jury to decide that this is within their domain as making a managerial it would be a business decision if it were considered out in the private sector and so the internal affairs division conducted this investigation into chris's father's complaint and in the course of that they uncovered these three are are they are faced with these three instances that they believe that chris is being untruthful lieutenants of internal affairs then recommended that chris untruthful remembering that that can be reckless not just intentional but reckless and so the lieutenant speed recommends a citation for untruthfulness and then it goes up another level to the administrative disciplinary committee which consists of five as i was mentioning five police officers and supervisors plus who are indigent and the pendent citizens they review all these documents hundreds of documents all these witness statements they review the law the policies and they say well it looks here like we've got a case where christopher zamora was untruthful on multiple occasions and the head of that committee which was captain's era recommended the ten day suspension well schooled me no he did not he recommended that christopher is more of be indefinitely suspended which is the terminology for terminations he recommended that could be terminated for being untruthful but the committee overruled that committee the a t c which is higher up and they're the ones who then appoint this review of all these documents many witness statements including chris and his father then made this recommendation of a ten day suspension made it to the chief of police charles mcclelland chief mcclellan and so then chief mcclellan reviewed all of that used his own knowledge and understanding about the way all of this works and imposed a ten day suspension this trial chris was promoted to s these steps between the people who chris alleged had this retaliatory animists and the various people who found that he was untruthful and the ultimate decision maker who imposed it show that there was a break in the chain  causation under this court's opinions and motto along which i've cited in my brief that break in the chain of causation is enough to eliminate the but for  causation needs to be clarified when it occurs in the context of but for causation which i describe as the degree of causation we've briefed that issue the judge judge atlas addressed it very well i believe in her memorandum and order of last year what i want to call now to the court's attention are some new cases since our brief thing addressing the issue of but for causation in a cat ten fifty seven the pin site would begin at ten seventy six circuit twenty fifteen the court the error affirmed verdicts a verdict of liability where the retaliation it was retaliation it was clearly a but for degree of causation that was required where the retaliation occurred through a cat's paw process the court was satisfied that that was perfectly fine crabtree versus secretary u s department of homeland security that's  unpublished decision from the six circuit twenty fifteen west law one nine four eight two six seven six circuit five one fifteen a little quote from it the employer can be liable for retaliation under cat paw theory if the plaintiff shows two elements first a supervisor was motivated by retaliatory animists and took an action intended to result in the plaintiff's terminations in that instance but if filon adverse actions that are in your vs well star health systems twenty fifteen west law three seven five seven three five four eleven circuit twenty fifteen also on unpublished but again not having any problem with the idea of but for causation in a cat's paw scenario also mccann overseas philadelphia or city of philadelphia from the third circuit is cited in our brief and it is also i just want to emphasize also a but but for causation can be satisfied in a cat's paw scenario and i don't think that there has been any decision that has actually held that it's not the fifth circuit did in that one case cite or say in dicta that we have a question now since stopped whether but for can survive in a cat's paw whether but for can work in a cat's paw scenario but that's the only thing that i know of that's been cited i believe that would even remotely support their position on on cat's paw not being available where but for as the standard of causation address the future refutation past damages that the court affirmed and the future compensatory damages that the court ruled in their favor on so they did they just said you know hundred  fifty there is no legally sufficient evidence for any of this even though they've already knocked out one hundred twenty seven thousand in the j in the well so in our cross appeal brief we addressed why  the future damages should be this it should be put back again and then in their reply brief their third brief they just addressed liability they did not address our cross appeal on the damages issue on the future you the question for future damages was what sum of money if any paid now in cash do you find would fairly unreasonably compensate playing to chris morrow for his actual damages if any suffered as a result of the defendant city of houston's actions that have found would not have occurred but for the retaliation and then the items are emotional pain suffering inconvenience mental anguish loss of enjoyment of life and other non monetary losses so reputation was not specifically enumerated as one of the items but it was certainly argued jury award just to show in response to that yes it did in the future answer in dollars and cents one twenty seven and reputation reputation would certainly argue that extensively so it falls under the general category i believe of non monetary losses he had no claim for for monetary losses  so that the district court held as a matter of law on the rule fifty motion that there wasn't legally sufficient evidence for the future compensatory damages and again there had there's only our briefing essentially on that subject because they didn't respond to it and so we didn't reply to it but it's our position that you know regardless of what the actual number should be because the judge didn't do a remitted to her she didn't just reduce it and so we're not here to talk about what is the appropriate number of for compensatory damages it's just is there was there  correct i don't think the court could as a matter of law hearsay from the record it should write it it should be it should be this i think that would have to be remitted to to the to the district court this case is certainly pinned on the district court's plate for a long time and i understand reluctance to send it back for further proceedings for something like that but of discretion standard as opposed to the de novo review that you have to give to the question of whether there is legally sufficient evidence so it would be a challenge i think for the court of appeals to come up with an appropriate number for the future compensatory damages but on the issues that really is before the court that is whether there was legally sufficient evidence to support future compensatory damages again there was plenty of evidence about the damage to reputation that the plaintiff continues to suffer as the defendants representatives and witnesses in the trial testified right there for the jury they still think that he's a liar they said he's a liar we we think the arbitrator who reversed the findings was wrong we stink he's a liar and in that case and i think it was extraordinarily reasonable for the jury to say he's are a few things if we've exhausted the topic of future damages i just would like to address concerning the argument that we heard a few moments ago first of all there was that the contention is made that that cats plus an aerial requires rubber stamping essentially the higher level non animated i'll say non animated because that in the sense of not having retaliatory animist that that person just rubber stamps is a decision that's made by the lower level individuals that we're concerned with in this case  animists taking an action intended to cause an adverse action and that ends up being the proximate result the proximate cause of whatever the adverse action ultimately taken might be there's no requirement there be some rubber stamping it's just proximate cause and they say the court spoke of proximate cause install as something that just has some sort of direct connection with whatever action was taken by the person with animals black's law dictionary defines proximate cause a cause that is legally sufficient to result in liability and act to remission that is considered to result in a consequence so that liability can be imposed on the actor there is no notion that the ultimate decision maker just has to have rubber stamped the lower level decision there was also the contention that there are just too many inferen steps you have to get through to find that the ultimate decision makers the chief mcclellan who oppose the discipline was the cat's paw of any of these lower level guys and their point is that there was an independent investigation done by i don't know who exactly they're claiming makes did the independent investigation because the  an hour this wasn't the only case on their docket they had gotten the file a week before so that had a chance to read the file but they met and discussed this case and along with several others in about an hour that's in the record document four o two page one eighty seven of captain zero is testimony approximately winds naing to ninety one thousand it took about a day for well i'm sorry i would guesstimate that it was approximately probably about an hour to do all of these cases so there was no independent investigation that was conducted by the plane it went on for about i don't know fifty pages at least probably he accused captain executive assistant chief munden of in the houston police department of perjury he include he accused captain graham in the crime reduction unit he accused lieutenant casco he accused sergeant miss koski so there was a lot to investigate and so a lot of statements were collected from a lot of people but when you look at the untruthfulness findings the three very discrete untruthfulness findings that emerged from the id process and that's before the fourth one got added i'll mention that in  moment but there were three very narrow untruthfulness findings it was ok if you say that you got you've been punished but you're saying that nobody else got punished and he said well no officers with they let a prison they brought a prisoner in to lock up and he had a weapon on him they hadn't searched him properly and they didn't get in trouble the way i did they didn't get they were not chastised i think was his phrase  and so that that didn't require twenty two witnesses to resolve with that dispute was about it it depended on what sergeant this koski and lieutenant casco said powell how they had responded to that situation and i believe that sergeant miscast he said he dealt with it immediately he said i dealt with that mediately well no he didn't deal with that immediately it actually took a few months before those guys were suspended for a day and that's what happened they were suspended for a day there was also testimony that they went to the jail for a week to get remedial work on on how to search people however sergeant morelli testified at trial that he you know he  no they weren't chastised he was trying to say oh no i dealt with that immediately when that wasn't really the case trying to create a conflict between his his statement and this is a moral statement that he'd been given the opportunity to review that's one example the other one the other untruth on this issue and one of the other untruthfulness issues was whether officer horn gave him a tape recorder or whether he had gotten it himself well that didn't take twenty two this gargantuan i a d investigation well most of most of it had to do with all of those issues involving men wells and morris complaints but very few of them actually had anything to do with the narrow untruthfulness find the meeting on march seventh two thousand and eight that had been that officers the more i had had recorded the the question the view of chief mcclellan was i believe that since he came to the meeting with various binders he must have had enough notice of the meeting and so when chris zamora said i didn't have notice of the meeting you know he must not have been telling the truth because he came in with some binders well he was undisputed that he had some anyway so clearly i mean if he had noticed he spent a lot of time putting together something he didn't need to get the idea here is that the is that the  process took a minor disputes about factual issues and even if the city was right in resolving them against officers of morrow even if the arbitrator was wrong there were still such minor issues in comparison with the no responsibility for anything that proved to be false but i can i do feel that was just a minor inconsistency so there was comparative evidence as well all right thank you  responded to your last comment about officers of mora taking no responsibility the indication that officers are more provides for having taken responsibility is where he testified that he's young and makes mistakes that's not the same thing as saying i really did something wrong i had bad judgment used up bad judgment here and so forth it's a very they kind of superficial skimming along that i'm young and make mistakes it's the same sort of thing you can you can say to just not knowing how some protocol works  decisions on the matter of inferences and the this distance i just direct you to page twenty of my opening brief where there's there is a point from which the the jury could infer retaliatory intent on the part of the c r u supervisors based on the things that obviously is more testified to but nothing above that and so this finding to question number two would require that the jury infer that retaliatory tenant intent on the part of the the other witness statements and documentation and that it resulted in a skewed investigative point and there's no evidence of that in fact lieutenant spewed as counsel just said pointed out that lieutenant spew chose to believe officer maurice's i got it from officer horne then the conspirators in the position of deciding who to believe and that kind of a credibility determination is similar to what juries do you take what's presented in front of you and he may also have taken here's what i know about internal affairs division and heading up this investigation there is no evidence that he had any and retaliate or animists and in fact on the contrary  have to be a cat's but they did this extensive investigation which counsels saying is it really very relevant but they investigated this and during the course of the investigation is when they encountered these untruthful statements officers and more so there's no retaliatory animus there and then further up the chain captains era again officers more testified there was no retaliatory i was there or from chief mcclellan in fact all this is more even stated that chief mcclelland the decision maker who imposed the suspension was not a cat's paw so i don't know how we even get there