it's extremely important to recognize the policy that underlies the passage of that act by congress the railroad industry has a long history of harassing and intimidating and abusing  employees the f r a has found that c s x in particular would intimidate employees to not report accidents and not report unsafe conditions because those in terms would have to be reported to the x r a y which could result in fines against the railroads and other penalties and so when congress passed the recalibration provisions they did it for the sole purpose that employees would feel free to report injuries to report unsafe conditions to report violations of federal rules and regulations so that the rail industry would be safe for the people of america there are four steps that must be proven in order to establish a violation of the f r i say this case only involves one of those steps the issue of knowledge it's the employee to demonstrate that the company had knowledge that he had engaged in a protected activity the problem in this case your honor was that the district court imposed a greater responsibility on the employee it required that the employee show that the person who actually was involved in the discipline himself had knowledge of the protected activity and we would respectfully submit your honor that places an onerous burden on the employee it places an onerous burden on the employee because in order for the employee to prevail he must rely on the truthfulness  relationship between the supervisors who were aware of the protected activities and the supervisors who were involved in the discipline however the trial court said no that's not sufficient the employee who actually or the supervisor i'm sorry the supervisor who actually disciplined the employee must have knowledge that simply takes the statute outside of the reality a railroad actually i think it's a little broader a district court said that the persons involved in either as advisor or upper management had knowledge and  there's nothing to impute that the person who wrote the persons who took the adverse action were told by bear or that they knew of the incident at all well that's true your honor and that's and that goes to the heart of the issue here in the first accident we have mr stafford has to resign as the person responsible for the discipline  right to infer that there were conversations that occurred that you had all the discovery and didn't come up with and there was direct evidence explicit direct evidence that those supervisors  judge the the evidence and summary judgment is a mini trial and you can look at evidence to question and other resolve by a jury but you gotta put it to the test and you're given the full the fact that a supervisor says something which is not supportive of the f r c case is completely consistent with the congressional history given the history of intimidation and harassment  the supervisors to say exactly what the supervisor said in this case to dismiss the case a summary judgment stance is contrary to the congressional policy which is protecting those injured employees so what at what what what  but in the first place is the close relationship in terms of the chain of command between these individuals so you're talking about corporate structure we are in if you're going to rely solely on a hierarchical structure of a particular workplace now in a sound enough questioning you to explain if you can how a reasonable juror can rule in your client's favor simply on the basis of a corporate structure let me do assuming that the law with permits that let me go to the second case and respond to that well but i won't because there are two different incidents in either one of those incidents would warrant  the reversal of the trial court of that in the second case it's important to remember and the i believe the evidence is a little bit further in the second case we have mr wright who is the division division manager the evidence shows that mr wright knows everything that's you did which is basically supporting his employees not going into a particular yard so mr wright is the head of that division we know that he knows everything that goes on there the jury broad language and the liberal interpretation of these federal labor protection laws a reasonable jury could infer mr wright knew what was going on mr wright was unhappy with what mr conrad did mr wright suggested that he be looked at more closely and is it unusual that shortly after this incident occurred and mr conrad was accused of something one of the accusers gets on the phone and calls mr wright you do a lot of r the standard under the i feeling that the supreme court has ruled on a number of times recognizes the dangers of the workplace and the problems that employees have which is very similar to the reason that the i r s sank past retaliate or th reporting to the f r a but the problem is just as black hasn't told us the employee always wins in these cases the way he told us employee always with gates and the employee should not always win in these cases your honor but the jury should have a right to decide what's the more what's the reality of the situation what what is the reality in terms of the closeness of the supervisors that are involved the supervisor with knowledge and the supervisor with discipline your hon if this was if the person let me let me give another example c s actually corporate headquarters in jacksonville if this was a situation where some supervisor in jacksonville had learned of a protected activity need i believe your honor that there would be limits to the knowledge and as i was just explaining it would the limits would based on the realities of the working relationships with the supervisors and within that when the supervisor with knowledge is in a superior position to the supervisor who actually involved in the discipline and they work closely together and they're located in basically the same areas and work in the same territories in that area in that situation i suggest it would be imputed if it was more remote it would not be imputed and so we're not talking about every every you know every possible situation within the corporate structure what evidence  well certainly i think that with regard to the second situation your honor the proximity of the daimler your incident to the discipline with we're talking about within a week after the incident three senior officials of the united transportation union were brought up on charges that's slightly more than a coincidence your honor that's that is something that has not happened in the past and i believe the jury would be right in assuming that or inferring that this was a direct message from management to the u k you stay out of our hair don't interrupt the operation of our train system and wh circumstantial but the proximity in time and you senior manager the senior level of the new officers involved that's more than just a coincidence your honor i believe the jury would be permitted to determine that good morning your honor may please the court my name is jacqueline holmes and i'm here on behalf of the apple e c s x transportation i'd like to jump right to my knowledge because i think that is obviously the ground on which the district court ruled in our favor  our view of course is laid out in our papers is that he could well have ruled in our in our favor on a number of grounds but let's focus on knowledge first of there are two alleged adverse actions in this case there were february two thousand and eleven charges and an associated timeout which is outlined in the papers as a paid meeting with management to discuss rules and and how to comply with them going forward for which the employees paid and then there would were august two thousand and eleven charges brought pursu  to the collective bargaining agreement that today that resulted in no consequences whatsoever to mr conrad so those are your injury he is to my knowledge your honor i don't know that he has returned plaintiff ties the february charges to an hours of service that complaint he says he made in january and the august charges to the daimler yard incident in all in august it's undisputed that the only evidence in the record  baer was the only manager who knew about the hours of service that complaint and it's further undisputed the mr baer was on involved in the february two thousand and eleven charges and it is undisputed that the only evidence in the record is sabotage is that a different trainmaster daniel renner was aware of the daimler yard incidents as mr katz points out ms ryder made some comments that perhaps construed very generously one might infer that perhaps mr wright had some knowledge of the denman daimler yard incident but mr wright had nothing to do with the august two thousand and eleven charges either what plaintiff wants you to do is course to draw further inference that right must have made a bunch of phone calls and gotten a bunch of managers to go out and engage in  retaliatory conspiracy plaintiff's argument is for really quite an incredibly broad standard it's a little narrower than i thought to his credit it's based on some sort of corporate close corporate culture close connection between  supervisory chain which you know again is at least a little bit narrower than i thought but it is not a standard that any court has accepted theory rado case from the third circuit knowledge was not an issue it was conceded as frankly it is in many cases the critic case from the eighth circuit which is the other principal appellate decision that addresses the burden of proof on video for a say expressly rejected a standard even stricter than that than the one plaintiff proffers frankly feldman and welch were the two sarbanes oxley cases from this circuit the plaintiffs lights don't address the issue no court has accepted that standard it's inconsistent with the statutory text the text of the first so requires a showing of discrimination meaning that someone was treated differently due to protected activity in which he or she had engaged you cannot possibly take action due to protective activity in less you know of the protected activity it's axiomatic and i think quite commonsense the plaintiff has made two arguments in his brief focused on one of them today all of just to address them both the first is the osha regulation and just a technical point on that he inadvertently i has to be knowledge in the respondent that regulation does not address with any specificity whatsoever how do you deal with that in a company like c s x which has thirty one thousand employees and thousands of managers spread over twenty three states and d c it just simply does not address that it just says there has to be knowledge in the respondent osha has spoken in more detail to that question to the extent that's relevant to the court's analysis it publishes a whistleblower investigation manual which is designed to inform the public as to how o will investigate claims under the f r a set as well as the other statutes that osha administers and it is also to guide moshe's compliance officers in addressing those complaints said page three ten of that manual in the manual is publicly available at w w w dot whistleblower's dot gov under the regulations to have at page three ten under employer knowledge here's the first sentence i will read you it does go on from here but it says the investigation must show that a person involved in the decision to take adverse action was aware or suspected that the complainant engaged in protective activity that is at a minimum the proper standard if you if you don't want to hold the to decision maker knowledge at least as somebody who was involved must have been aware the other sub agency within the department of labor to whom one might look for guidance on this question is the administrative review board as the court may or may not know the way these cases are handled within the department of labor is that the secretary of labor has delegated to osha the investigatory process so ocean vesta gates complains they are then excuse me they are then they issue as the final order of the secretary of the administrative review board on this issue the most lenient explication of the knowledge standard that i'm aware of under the aforesaid is the rudolph the amtrak case which is cited in our brief  it requires involvement of some knowledge of someone with involvement in the challenge petition that case which i frankly think is to boost the standard but is far stricter than the one plaintiff is advocating here involved in house counsel with knowledge of the protected activity advising the managerial decision makers of of what to do with respect to the employee and the man at the managerial decision makers had no knowledge protected activity and that was found to be sufficient i find that to be too loose a standard in all candor but nonetheless it's significantly stronger than what the plaintiff is advocating for here plaintiff second argument and it seems the principal one is a policy argument that any standard  good that presumes that the only way for an employee to establish knowledge is through a manager's direct testimony that's obviously one way that's not the only way that's not how knowledge was established mr bear's knowledge was established to plaintiff's testimony planner said i told mr bear for summary judgment purposes that's the facts mr bear by the way doesn't agree with that and for summary judgment purposes that doesn't matter similarly there may be e mail communications between managers about protected conduct the in the case of a  safety concern that's raised it could be raised in a meeting where a manager was present the manager may deny that he knew about it but frankly that's evidence on which a jury could make an inference it could be documented in a report that is sent to the manager it could be something the manager is asked to take charge of fixing osha has in its manual provided some other examples for example and this would be true probably not in a company the size of c s x but if you have a piece of equipment and there's an issue raised about the safety of that piece of equipment and there's only one employee who operates the equipment for example there are legion with legion ways and i will tell you having handled dozens and dozens probably more of these cases than is healthy  maybe but i'll tell you what happens in those cases because i've had some of those cases of mr conrad kind of claims to be that guy right but he was complaining all the time but so here's the here's the problem with that if you're if you're somebody who is routinely raising issues which by the way our rules require employees to do and it's important to us that they raise issues if you're somebody who's always raising issues and then for years and then you get disciplined and there's no change in the character of the issue i think that undercuts an inference for television quite frankly because if you've been raising issues for years with no consequence or if there are other employees like in this case you have mr main who was in mr conrad sports big gun safety who are raising issues constantly and aren't being disciplined that i think undercuts a finding of establish knowledge i will touch just very briefly on some of the other elements of the claim i don't want to spend a lot of time on this it's outlined in the briefs and obviously we you know we feel that the judgment could be a firmed you know on these bases as well protected activity the key first on summary judgment purposes for protective activities objective reasonable this we do not think you know taking for summary judgment purposes certainly is true  that mr conrad subjectively believe there was a violation of federal regulations under the facts as outlined to take the hours of service complaint is an example employee reports an injury that marks off the manager says will you come and show us what happened for as a way of investigating so that they can assess if there's any safety issue he says no nothing happens to him there's no argument that that employee was required or allowed to go on duty after working for twelve hours  there's no objective basis to think that and moreover somebody mr conrad's position who told me in his deposition and this is in the joint appendix at one nineteen that he had no that he had no idea how long mr how long the employee had worked there's no way you can think that that's a violation of hours of service which allows allows people to work up to twelve hours contributing factor i'm just going to speak very briefly there has to be the protected conduct was at least one reason for the adverse action we acknowledge there can be more than one reason and some of the reasons can be legitimate and if the protected conduct played any role then we lose but temporal proximity alone is not enough i would refer the court to the iraq case which went out of his way its way to talk about how low a standard protective act contributing factor is but even there the court found that temporal proximity plus disparate treatment in the sense that the rule had never been enforced before any employee and nobody thought to enforce it until after the employee engaged in protective conduct was enough to survive summary judgment in the court even in that situation found it wasn't overwhelming you again what you can't have is just a mere denial of wrongdoing and mere temporal proximity that does not get you there and there's ample evidence in this case there's no shifting explanation mr conrad originally admitted that he engaged in the  conduct in february and again there's been no finding whatsoever whether engaged in misconduct in august or not it just hasn't happened yet treatment of similarly situated individuals there is evidence in this record that see a six consistently treated individuals who violated this very same rule in precisely the same way treated mr conrad and again there's the evidence that others who engaged in protective activity were not disciplined i will sum a very briefly and clear and convincing evidence which is our affirmative burden is not contested neither in this court did mr conrad put forth any argument whatsoever that we did not satisfy our burden on clear and convincing evidence so that's of course another basis on which the court affirmed and for all of those reasons we would just urge the court to affirm a very interesting situation that we have mr conrad who had been a thorn in the company's start for quite a while they're going to usual that twice within an approximate eight month period he can he becomes disciplined highly unlikely that he became a sloppy employee out of the blue in terms of the second situation the evidence is that he knew that the supervisors were out there and that they were looking for him there's nothing to indicate that he became an extremely stupid employee at the last moment the only logical explanation here in an explanation that a jury should be entitled to reach and hear the evidence concerning is that at a certain point enough and the supervisors decided to get this the word out of their side and especially your honour's after that last incident it's important to understand what that last incident did the the train that got stuck because they made it go out without sufficient fuel was blocking the main line of the railroad as long as it was sitting there the activities when the bolder the more division essentially were coming to a stop because nobody could get past it in one direction or another the this back to have requested that the engineer go into a nearby yard pull out another train and get his train out of the way and the engineer said no i'm not qualified to go in there i'm not going to do it batch are then spoke with mr conrad and repeated the same thing what are you trying essential what are you trying to do stop the entire railroad and he said no i'm just trying to protect my people and federal regulations and the  the p u c agreements all indicate that somebody has to be qualified to go in there and that's when she threatened mr wright's not going to like that and then within a few days not only was mister mr conrad disciplined for the second time in just several months two other senior members of the u k you were also disciplined that infinite information that evidence of those circumstances is more than enough to comply with the policy provisions of this act which is to protect employees from an immigration and harassment and it's more than just a little bit unusual that shortly after mr conrad is told that in your capacity to shut down the road that there is a scorched earth policy against the members of the union we would respectfully request that the court particularly look at that second incident remember if your honour's rule on just one of those we return to the district court and go forward to the jury and while i go and make that the evidence with regard to the first incident may be lighter and a little bit more distant but the second incident the inferences and the circumstantial evidence is just completely overwhelming and i ask you to refocus on the facts of that aspect and i thank you for your time your honour's thank you mr god's will come down a great counsel and proceed on to the next case