boston challenging to fight as a matter your honor or your honour's of both ron fact that conclusion is wrong i think that the error that the district court man made was to apply the same kind of analysis to this case as it were to for example a title seven case in which there were a plot a number of different reasons for the terminations but in this case the only thing that the dispute was about the only thing mr denny was wrongfully denied lee and that he was fired as a result of his opposition for lee the district court concluded that the language that missed it thought that mr denny had use basically protected the railroad from the consequences of their repeated refusal to allow to leave which the court it found they were bound to it's to apply words talking past each other here take a look at excerpts of record pa the courts failure to to account for the fact that the railroad had essentially turned the family medical leave act on its head and used it as a sword instead of allowing it to be a field for the plaintiff i reasonable like the fact that leave this plaintiff without any dispute from the defendant as soon as he made the request which the defendant was determined to deny or only two requests this was the only one that was actually denied he was then he was he was in danger of being fired from the beginning he could no longer refuse the call he could mark off set was given the opportunity to mark off so if he went to work he was going to be disappointed if he didn't go to work he was going to be disciplined and so what happened was the defendant got to set the rules by which this plaintive could challenge its illegal acts which put him in an untenable position and that is the fatal flaw with respect to the courts the district court's decision that is that the defendant created in effect a situation from which the plan understand your anger i had reserved some time your honor i guess i'm going to run through that and suppose man asks for sickleave employer turns him down employers just totally wrong and no excuse or just of the or not i know i don't know i request for so i don't agree that user claiming rights under the family medical leave act she somebody from criminal liability but that's not the case we have here in fact from talking terminations well i understand that i would i guess i would say that the family medical leave act does not give somebody the right to punch somebody in and i mean that's that's a criminal act to give somebody the right to cuss out as boss and challenging the fight but apparently nobody  fuck you which is a difference presumably discernable to the district court but it's not a great difference moreover the defendant himself mr ritter the defendant's officer engage in activity that without any contradiction was deemed to be a grounds for termination namely putting his finger in mr denny states the the officer who had not asked for leave but was opposing the legitimate request really was not punished mr denn who did not physically ever approach the officer was punished and he was the one who asked for leave so i think the court's factual legal analysis was incorrect even though i don't i mean i'm willing although i don't agree with the factual findings of the court i don't have the time to explain why its analysis nevertheless is and is unsupported by the law and not consistent with the concentrate on today and that's the first issue is the fact that the the court the trial court did not make a determination of whether the plaintiff outside are themselves protected activity under the family medical leave act as a matter of law unless according to the questions i'll address each of those those issues negative factor in this terminations decision it was never the union pacifics burden of proof at trial to show that he said one use of profanity versus the other it was pointless burden of proof to show that this forty trial the that's m l a questions were the interference claim and the retaliation claim both of those went to trial both of those watch a trial on the merits of the different issue that was decided on s causation standards under oregon law the result wouldn't be any different incorrectly did so an additional reason would be without even addressing that would be that it was always the plaintiffs burden of proof because this was a trial that was always his burden of proof to show that is at a minimum somehow his use of profanity and asking his boss a take it outside was was protected activity as a matter of law i think the boss and the judge said it was the use of profanity the boss said i wouldn't mind  then he said fuck you rather than the clock you know big difference there is so i don't want you to lead us to say and any time somebody uses profanity in a workplace there was a fourth of july it was a sunday he would leave had only been pre approved for going to see a chiropractor neither of which was going to be happening on the fourth of july there was a legitimate dispute over isn't title meant to thank your honour's of let me address just judge it braver's question with respect to the ofa claim because it was dismissed at the summary judgment stage we do not know what test would have applied for example there's this good faith doctor i don't know under oregon law either i don't think it's a given that under oregon law the close nexus between the subject of the argument in the words that the railroad said this plaintiff couldn't use really that's all we're talking about there's no dispute that he was wrongfully denied legal in the first place and that they were arguing about that and that the railroad continued the defendant continued to deny the lease so the only question is the extent to which the plaintiff there or the defendant's choice of have was not allowed to use was allowed or whether they could visit consequences under oregon law under against this plane so i think there are different tests and we didn't we didn't have enough time to discuss more fully how that operates in this case early stories i'd like but i don't think it's clear under oregon law this is close to a case in my opinion a first impression under federal law it's certainly a case of first impression under oregon ron i don't know that you can say today that the oregon courts would conclude that the nature of the subject of the  be taken was by law a matter that essentially trumped the defendant's rules about what words you could or could not use in the course of the dispute thank you thank you very much