elements of his burden of proof the contributing factor element and the second is the district court's refusal to grant brianna's that's motion for judgment as a matter of law as to its affirmative defense with regard to its decision to dismiss the plaintiff that first with has been a set up with the non living party at so much man the federal railroad safety act with regard to the legal standard prohibits discrimination based on protected activity in that regard the text of the act says that a railroad carrier may not discharge or in any other way discriminate against an employee if such discrimination is due in whole or in part protected activity to be sure discrimination need only be a contributing factor it does not need to be the principal faster  or the main factor or the only factor but it does need to be a factor and i think the definition of contributing factor that the courts have routinely used including this one sort of explain helps us understand a factor in what the contributing factor standards that's again is this card and others have articulated it is any factor alone or in combination with other factors that tends to affect in any way the outcome of the decision what's the decision the challenge to discipline so under this statute the contributing factor that the employee has to show is discrimination based on the challenge discipline here the district court articulated discrimination as a requirement that didn't really apply and instead what the district court said is the mere fact that the n s f would not have uncovered the underlying legal violations for with which it disciplined the plaintiff but for his protected conduct that was sufficient as a matter of law to show discrimination and to show i i don't know your honor i suspect the answer is no because it's not in your brief but mccarron is a case in which the supreme court dealt with this very question in result and here honor i'm not aware you may need to apologize to your client because the supreme court ruled in your favor but if you haven't alerted the district judge to this the argument may not have been preserve i think your honor it may not have been preserved as to that case but i think the argument has been preserved but we clearly have taken that have taken the position all along that this is not enough to show contributing factor as a matter of law and again i do apologize to the court for not bringing not that case your attention i was not aware of it and i assume the trial counsel was not either but i was i don't know but i do think that we have preserved the issue of whether this is enough as a matter of law and admittedly the appellate decisions on on contributing on the federal road safety act are limited but i think if you look at iraq which is the third circuit's opinion which is the one that that i think everybody would agree articulates the standard in the way that's the most favor the plaintiff even iraq does not come close to going as far as the district court plan here and so i think that you know what the facts of iraq were overturning a defendant of a grand summary judgment of the defendant based on not only temple proximity as it sometimes characterized but also other facts including including the fact that the employer again taking light most favorable the facts in light most favorable to the plaintiff the employer had the information  need to charge the employee and before he was injured did not issue the charge and then issue the charge after it was entered so those facts were again enough to get to get a judgment for you to overturn summary judgment for the defendant but not to enter judgment for the plaintiff is a matter of law even the administrative review board which admittedly has gone further has not gone as far as the district court here in the ministry of review board cases that have been cited to you all of which contributing factor i think the remedy would be a new trial if you hold in our favor if you hold in our favor on the affirmative defense and hold that we have proven that affirmative defense of the matter of law then i think the remedy at least as to the dismissal with the judgment in our favor  which was so the affirmative defense is that we have the opportunity to show by clear and convincing evidence that we would have taken the same action notwithstanding the protected conduct what the district court said was needed wood it's that we always we have a zero tolerance policy for theft we presented multiple examples including individuals who stole ties who were fired for theft but there's also evidence that that this  is common and the supervisors look the other way carrie so i don't think there is with all due respect your honor i think there is evidence that employees took ties with permission there's no question about that contractor can give permission here mr cosey are didn't even allege that he took them without permission right he said i had permission and his supervisor said you didn't have a mission and the b n s f decision makers who are up the cha but what the cases have held is that in the context of the affirmative defense you have to look to you have to look to what the politest to what the employer reasonably believed and what evidence the employer was looking to can be billing from the ninth circuit goes to that point assess the film and case from the fourth circuit i realize those are not from the certain you know what that means the employer reasonably believe  better better cleaner way to say it so again i do think that on the affirmative defense there is ample evidence in this record and again but of who says he was allowed to use things which they s simple clash of toast because i think just like in any discrimination case you have to look at this from the employer's perspective from the perspective of the decision maker and it's never been held so what is that  perspective of the decision you have to look at question is whether is is who is telling the truth well i think the question is whether based on this sort of evidence what would this be n s f decision maker had done had there been no injury report if he had this same evidence and there had been no injury report what would he have done and the answer is clearly he would have dismissed that's why i say clearly how many people have been dismissed because they t but like your honor there is no evidence of anyone who took ties without permission and wasn't fired they say it happens every day why didn't they come up with one person who could testify to that fact would justify the war that they took ties and far well it might in might be the case that that that wouldn't happen but i understand your come on be realistic no one's going to say i stole i wasn't fired i got away with it right well but again the question is you know at a certain point if you don't accept evidence like this and you hold that as a matter of law any time somebody files an injury report any rule violations that are uncovered there after statutes is not to immunize people from the consequences of their own misconduct many many cases say that and i get asked why you're not going to get anybody so i appreciate i will reserve the remainder of my time  they please the court matthew morgan from nichols castor on behalf of the plaintiff michael cozier counsel raised two issues that she wanted to discuss this morning i'll start with the latter but first apologize to the court the mechanic case wasn't cited in our injury report was in the chain of causation if it was then the railroad can't fire the plaintiff even if it would have fired or a person for that otherwise mccarron although it deals with a different statute announces for employment discrimination statutes in general that that is not the law and it says even if the wrong the employment wrong was in the chain of causation if even in the course of litigation you discover that the employee has committed a firing offense he can be fired then in their right that's the holding of the supreme court the jury instruction in this case is totally incompatible with mechanics so where are very well i'm not at and taking your honors word for the correct recitation of the case and what it stood for and i would i would submit that the instruction would be consistent with that is not in here is not look it's not consistent with mccann and well because don't quibble with me about a case you haven't read ok i'm not questioning that i'm asking is what do we do about the fact that nobody called this to the district but i don't i don't think it deserves a reman to the district court here is why if a plaintiff prevails on his or her prima faster case under the f r i say he doesn't win liability at that point in time but maybe we need another jury trial but the immediate question i'm asking you i hope my question isn't too obscure are you arguing procedural default by the road i'm not arguing procedural default  railroad ok i'm simply contending that under the theory the chain of events theory of liability under contributing factor in the air twenty one framework judge peterson correctly ruled in our favor on summary judgment his prima fashion case the railroad still can prove by clear and convincing evidence that it would have disciplined notwithstanding the protected activity that is what the jury was instructed in the cozier case they had the ability to evaluate all of the evidence we're talking about and by the way it's the same evidence on the clear convincing standard that was just discussed with your honor's i'm the record in connection with the clear and convincing standard that's the same evidence on creature beating factor it's not as if the jury didn't hear any evidence that any evidence was excluded candidly the question is really can a plaintiff in this context meet his or her contributing factor element to the prima fashion ted the test by showing that makes sense for anyone who has an axe i guess it's to the degree of the injury or the accident your honor i think the prudent course for an employer would be to investigate and in this case we aren't challenging the investigation the employer certainly has the right to investigate any accident or or discipline it is but the way the the framework jury was told the jury was told otherwise the jury was told that if the railroad would not have investigated the person but for the injury report then that's all the point is needed to show with regard to the suspension that's correct but i understand the what the the defendant is challenging on appeal is the termination and the terminations was that that this issue of stealing taking track ties was discovered in connection with the injury investigation so nice well it might be mike my response your question is the employer under the framework still gets a was i mean i believe the instruction was clear that the railroad could that jury could find in favor of the defendant so long as the defendant proved by clear and convincing evidence it would have taken the same conduct namely in that it for the purposes of people determination and i know it's not that i don't believe but it is what the jury was told ok i'd disagree with that interpretation your honor i i think the jury clearly understood that b n s f could avoid liability in this case by showing that they would have taken the same action otherwise and what we did at that point is what we do in debate in the mcdonnell douglas ring what do you mean by take this same action terminated and and frankly what we've been talking about as compared  not one person one example of a person who took or stole track ties and was terminated not one they also there was also evidence in the record that other folks were standing adjacent or similarly close to mr rules violate constantly you're saying the company doesn't that is never punish people for stealing from a no we're saying that they don't punish for taking tract eyes well that is stealing it  that he was given permission by his supervisor and that was a hotly contested issue at trial but he but his testimony has consistently been that that he had permission to take ties and there's other advi won on the contributing factor element that summary judgment met that we went immediately to a damages trial is just not correct all of these issues were explored was made it was scott's person who allow surely ok so i guess if you repeat your question that i might have missed something as well as the soup was his supervisor authorized to let him take the time yes these were these were beat u track type sitting on the side of the road had been wasn't authorized by the company to allow employees to take the times at one point time he was i think date there was some testimony about a form that needed to be filled out and process with the company in order to authorize but either he or a contractor they'd be n s f hires a third party contractor to come alongside the tracks and pick up the old ties so as long as he got permission either from the contractor or management  it's an interesting question but i think people use them for all sorts of things so it's time to look across wisconsin areas where mr cozier lived and where the farmer lived i want to take the in the limited they'd still have i mean he's still entirely workman's comp say that you know employees on the road aren't total workers compensation and so there's that feel a lot of that exists and so there's a constant battle about who caused the injury because as i'm not a feel a lawyer but as i understand it causation contributory negligence is a big deal and so percentages of who's at fault whether it's the railroad or the employee really matter and that's why these injuries are viewed as so significant of an event at the railroads and frankly it's why the amendments occurred in two thousand and seven to the federal railroad safety act to to make this an employee friendly statute to make this a quote unquote tough standard for employers  this was congress's intention and i think frankly the cozier case is a perfect example of what congress had in mind in terms of the burdens on the relative parties when an employee in the railroad industry in this day and age report to work injury i really do so they don't have health insurance or you know they have they contribute to a railroad retirement board that i understand has some health insurance benefits but they aren't entitle to workers compensation the contributing factor standard i think even if the court the court in its seventh circuit in its two thousand and nine opinion at its versus department of labor defines what contributing factor means contributing factor is specifically intended to overrule existing case law so you're saying that if someone is injured on the job he doesn't have any compensation recourse against the employer he can sue the employer if there is a debate about medical expense but there is a payment airplane and contract that provides any under the technician under the collective bargaining agreement i think typically railroads do reimburse for medical expenses but but i know that the workers compensation system is not available to employees on the roads but is there but if they're required to compensate them in some way for the injury why would they bother far they still have to pay where they came from firing him what do they gain from firing him yeah they gain i mean it goes to question of motivation right violated rules then that's a pretty darn good defense on any potential feel a claim resulting from the injury i mean the railroads have their newstead he's sure that injured he's been injured so he's entitled to some sort of compensation yeah i'm not sure that the railroad pays for it or whether it's through some type of health insurance but if it was only good if the company doesn't pay for by the said what is his incentive to far i think it's incentive to fire i think it's question maybe with regard to his health insurance or his medical reimbursement for the injury but medical expenses were to claim that we made in this case he was not reimbursed for any outstanding medical expenses in this case all right thank you your honor first i'd like to give you a little bit of factual information for the record that is responsive to some of the questions you asked mr morgan first of all with regard to the medical services the defendant's proposed statement of fact paragraph eighty four with that  i'm reading from the appendix that page twelve proposed finding a faculty for b n s f julie paid for all medical services provided to cozy are a following its receipt of his personal injury report and second with regard judge  to your questions regarding mr beets his authority this comes from the plaintiff's proposed findings of fact that summary judgment in the appendix at fifty four paragraph eighty two had seats cozy our supervisor acknowledged he had given cozy our permission to give the are just junk he says that that's not the company's position and in any event the company takes a very hard line when it comes to the examples that were given a trial with things like scrap metal employees beings being dismissed for giving away scrap metal employees being dismissed for giving way a small box of pencils a little bit of fuel it's a very hard line good or bad or ill it's a very hard line and i think mr morgan did misstate the record as well and i'd like to clarify mr rankin did testify that he was aware of three employees who were dismissed for taking time that cited in our brief and our opening brief at thirty four documentary one ninety eight at three eggs forty two to forty three so i wanted the court to have that time that i do think that we have argued beat vigorously throughout that that this is not sufficient contributing factors a matter of law and yes we could have done better on that particular case but i think the argument has been preserved without question ok