the administrative review board decision affirming dale j's decision in order and at her judgment in favor of c p for three independent reasons st the board applied the wrong legal standard when it determined that mr riley established board precludes a finding that c p acted with intentional retaliation and rd the board applied the wrong legal standard and made findings unsupported by substantial evidence when it determined that c p failed to prove by clear and convincing evidence legal error there too you know i missed the l j in fact committed legal reversible error on contributory factor because he relied soley on chain of events causation in holding that mr riley established contributory cause the i had confirmed as legal error when it also plainly disregarded this circuit's well established legal precedent that to establish causation under st a plaintiff must prove intentional rich prompted by that employee's protected conduct counsel is this really a chain of events case i know that the agency said it was but i wonder whether this really is in a sense that this is unlike our other cases in which the investigation led to some other finding about it employee that form the basis for master of his case and he lived and died by this chain of events argument which we would submit because of that he shouldn't be entitled to a do over because the chain of events analysis here is clear this court has clearly and unequivocally held over and over again so this is not a case where where the agency or the judge blow pushed him to take a particular view because if you see if you see that the opinions blow as you mentioned in your brief they seem to want to ignore some of our case law or at least circuit that's just another form of chain of events which has been clearly held insufficient that doesn't carry the day the government's attempt to claim that the l g a relied on more than causation in fact is incorrect and it can ask this court to really read write the decision arguments the secretary seeks to rewrite into the l g decision ex post facto which we are to this court to decline tiny the secretary claims the temporal proximity supports a finding of intentional retaliation the government concedes though that the l j did not use and so the forty seven days comes about because the a court or the when the carrier issued that ruling keep in mind it was a time served suspension it could have been thirty five days it could've been twenty days the ultimate discipline ended up being however long it took they removed both of them from service at the time they reasonably had legitimate reasons to notice them for investigation it just so happens that that hearing and decision time took forty seven days that's how they came to the forty seven days to do so so i mean that they didn't have to do that he quezon either whose testimony do i read to get the reasoning of the decision makers on this penalty the the evidence in the record would show that mr morris was a hearing officer she wrote a recommendation and then forwarded that recommendation to mr clark his supervisor jennifer man who served as labor relations review and jerry  pac morris testifies to those that would have been the three individuals who would have subsequently reviewed that now your honor what's in the record of any of those three tests they did not your honor so they were no longer employed at the company at the time we have documentary evidence showing that that morris completed his recommendation he actually recommended dismissal for both bowman and riley for all the violations alleged including the altercation but then subsequent upon that multilevel review it was determined that to exercise leniency as to mr riley it's undisputed that mr riley stood for dismissal given his prior disciplinary record where let's  excessively disciplined at least from the standpoint of the the duration of it so what are his remedies the remedies aside from the st other than to look look away from the collective bargaining such a situation and seek some federal he has a direct remedy under the collective bargaining agreement as any actually exercised it and and he received a reduction of the suspension to fifteen days but the   the eleven thousand the full forty seven days and back pay you mean oh yeah they did and then subsequent to that c p made a motion to correct and clarify that based on the carrier's decision that you were talking about the recommendation how the recommendation made its way up the chain cracked but who was the ultimate decision maker well the record is the best we have and the record of this is that it would be reviewed by the two managers mr cork mr packer who was above mr clarke and then labor relations with jennifer mance really don't know who the decision maker was right correct we have these three individuals who reviewed at but i mean from an authority standpoint mr pac was above mr corker but yes there's nothing beyond the recommendation and mr morris is testimony so if that's the case you mention the very beginning what the what disposition you would ask us to make here  and i thought you said that it should it should go back and with a determination here ultimate determination of the case in favor of the railroad cracked right cracked we think two levels of dismissal and at minimum the remain and given the improper legal standards what about what about if it went back with if it was vacated went back with instructions to apply the correct standard satin is that another option or wiser that the appropriate that is that it would be the alternative request it's both we think as a matter of law dismissal can be made based on the briefing arguments we've raised but that were required under the proper legal standard and this court did so in the being a suffer so galloway so if it went back with instructions to apply the correct standard but we don't know who the decision maker is of where where it is we're that leave us well i think that the record sufficient to still show that multilevel review process was conducted that these individuals reviewed it and that they exercised leniency towards him the plaintiff didn't call these individuals either and i think more so on his part decision maker here who what happened here who it who made the ultimate decision yes i think i think you can glean it from the record from mr marson testimony that these were the three individuals who would have had to review it and given mr corker mr pac certainly gives an independent review aside from manage your review how do we how do we dismiss that though and i get back to just locals question if this if if this is arguably punitive because of the pride to protect a convict or at least we can say forty seven yes is arguably excessive how can we say as a matter of law that the railroad what made the same decision in the absence of protected conduct i would love to get her from a defense so thank you so much for going there yonder because i have two very critical points to make on affirmative  prompt reporting roles but even so even so that gets back back to my question if we view it as excessive it just seems to me to be very hard for us to then come in and say let's decide this is a matter of law i think in terms of the excessiveness i think that good faith when it disciplined him for the forty seven days they actually he actually made a finding of good faith and so i think to reexamine the forty seven days is getting back into acting like a super provider and i want one more question which is it don't we have a problem too in deciding this is a matter of law so if you look at the b s f case that was a summary judgment motion the district court we're looking at a district court record as i recall here we've got an agency record so should we send it back to the agency for a determination the had no supervisory disciplinary authority over these managers he doesn't work at the same location and so he was not in any personal knowledge as to whether they violated anything or were disciplined or not he testified i'm not aware none as to you a question for you i mean we know all the facts for one thing but i you may want to think about this would your client prefer to have us follow our law and reverse so that it's wearing a cert petition play me a conflict in the circuits and we're all wrong or would would your client prefer to have it sent back with instructions to apply our law to this record which i think their answer would i know what th what answer they want to give question would be could they possibly shape it to do that but i why would they want that the r b a or the secretary of labor you know there is a rb i believe in footnote thirteen  clarification of this court and they didn't need it that's that's you know i'm sorry but that doesn't pass the chuckle test we certainly there's a footnote is crystal clear that we were wrong and you we've told you before he we were wrong and we're going to tell you again you were wrong from q tip to all the cases following cuticle it's certainly question this court's holding i wouldn't your client want to just get just have us say no you know you didn't follow the law here and go take it office experience railroads across the country have seized upon those terms to create a standard that is virtually impossible for whistleblowers in the railroad industry to meet and that's essentially to require a whistleblower to have smoking gun direct evidence of the railroad members get in not a fist fight but an all a physical altercation while driving a huge train now the railroad has every interest in having that reported so the notion the notion that a railroad would retaliate against people for reporting an unsafe situation in which  union members fighting with each other when the reason they don't report is to cover up for each other because they know that discipline that's coming this notion that this was a safety retaliate for late reporting is frank it is just so counterintuitive i considered absurd the railroad would want that to be reported and they'd want to know right away because their equipment was being used in a way that created a hazard for countless persons and property in this situation totally counterintuitive when i agreed that workplace violence creates a hazardous safety or security condition which is why reporting it is protected activity under the st however here mr reilly was not actually found guilty of any r red and he did in fact reportedly but he didn't he didn't want to because he wanted he wanted the he didn't want the other guy to get in trouble or himself so he wanted he wanted to conceal from the railroad a serious safety problem and now the railroad is being punished for said for retaliate for anti safety retaliation respectfully under the railroad isn't it can't we apply a little common sense here well the railroad isn't being punished no by the us department of labor who we believe that this is a case in which protected activity did contribute to the outer section and i would note well certainly the railroad has the right to enforce legitimate safety rules congress made it very clear that they o false report there wouldn't have there wouldn't have been a person there would have been disciplined isn't this taking the but for causation notions to a ridiculous extreme well a department wouldn't  contributing factor in that case that would be similar to the seven nd it was taken armstrong clearly it would have to then explain why the inextricably intertwined theory which they thought makes this an open and shut case doesn't apply well as a threshold matter there would be no protected activity in that case it complainants have to have a good faith but legally filed a report but it wasn't done in good faith so under that for example the seven circuits armstrong decision that wouldn't qualify as protected activity but moreover that would be a case that's more similar i would argue at least to be honest that for example where you have an independent intervening reason why the railroad took the activity and in that case it would be the dishonesty or the false reporting healthy if there's nothing intervening the report is the bu for reason for the ultimate discipline but it wouldn't be the proximate cause in that case it wouldn't be the legally significant reason legally significant reason that presumably would wipe out the contributing factor showing i'm sorry what's the difference between false and late well false would imply that the complainant did not have a good faith belief and once again did not actually he might have been completely different it might have been it might have been this was a serious safety problem but it wasn't my fault or it was a  employee's fault and the railroad investigates and found that you know you you know you may you made a safety report you had to make but it was completely wrong that you're being we're going to you're going to discipline well i think in those circumstances that different from saying yeah you made a safety report but it was way too late so we're going to discipline you i believe that the board would find in that case that that the falsity of the report would likely overcome the showing of contributing know of or even if it were given a board so i support that i don't have a portside on point for that and we're just speculating we would speculate but i think even under the analysis set forth in this case and that kind of circumstance it would be highly likely that the railroad would prevail at the affirmative defense stage and even even if in that case the complainant satisfied the contributing factor tell the truth that you're right and that that there's a more direct causal link here because of the of the report the lateness of the report kind of go together the problem i'm still having with your argument is the face of the error be order which says essentially says we're going to apply a chain of events theory they s chain of events alone may be sufficient but it doesn't automatically per se establish causation and they found other facts that are highly relevant you don't think that that particular thing that you just said that that it's relevant is a problem in light of our case law in other words how do we know that that didn't sort of affect the rest of the analysis of they are be thinking well chain of causation or chain of events is good nuff and therefore we don't have to make the findings we would normally make well this court has said that chain of events and inex do so you rely on the temporal proximity but the temporal proximity also works against the argument in the sense that they needed to investigate now maybe forty seven days was too long to investigate but when you have a serious safety issue on the railroad they need to figure out who's at fault and whether it's to investigate the incident based on the evidence that it had but even the forty seven day span that a lapse is temporarily proximate particularly in light of the fact that there were no interest in independent intervening events that occurred the railroad hasn't proffered or put forward any other reasons why mr riley was disciplined in this way i was just going you seem to place a lot of emphasis on the twenty four hours and twenty four hours and seem real relevant to me given that they needed to investigate the incident that we are in we don't disagree that they needed to investigate other facts on the record though that do support the finding of contributing factor here include the fact that most canadian pacific reporting policy was in consistently applied and the road has not presented any evidence that it regularly mana monitored for compliance with its prompt reporting rules or that a forty seven day suspension would be reasonable or routine or customary punishment for this kind of violation and in fact labor relations manager school actually testified that he wasn't aware of any other employee who had ever been assessed comparable discipline st similar violation all of these facts are relevant and support the l j a n a r b's findings of contributing factor causation moreover substantial evidence supports their conclusions that the canadian pacific did not show that it would have taken the adverse  no evidence whatsoever about who made the final decision here we only know two things about the final decision maker the st is that they disregard disregarded the recommendations of mike morris and to that in the letter they state that they reviewed the investigatory hearing transcript recommendation to fire correct and the transcript that was reviewed is full of references to protected activity so we are we really know what the decision makers that they knew that protected activity existed and that that was something that influenced the final decision if this court finds it what the railroad did was ok all the road employees under this court's umbrella are in danger of being terminated because soley of engaging in protect activity what the railroad is asking this court to do is allow them to enter and i don't understand not a litigation stake in the game it sounds to me like it's fifteen days pay well ya know i will say he was held out forty seven dollars days for the timeliness in essence he was fined eleven thousand dollars because you're saying now that the forty seven thousand dollars and in your honors but what's so important here is that the law is clear and the law was enacted because congress looked at how the railroad treated its workers and said hey the business decisions it's not in there you cannot punish an employee for engaging in protect activity there is not a time requirement what the railroad is asking this court to do is allow them to pass their own rules this is the rules rules saying you have to follow all requirements to engage protect activity if you don't well fine you engage protect activity but we're going to discipline you for breaking our own rules they are not required to have this rule this is their rule that they're upset about it what's wrong with that though i mean suppose that they  rule that was more lenient and said you have to you know do it within seven days report report to an altercation i mean you know that's a reasonable rule they can they can set up rules so they can properly investigate and take care of any any problems that are happening safety wise no i would agree order it but the fact is that this is not a case like that apartment labor where they investigate and alter cation if his notice letter had said we're looking into your involvement in the alt for eleven hours so if the incident happened at the beginning of shift any report of in the ship will that have been a greater amount of time but the railroad doesn't that there's not even a discipline policy in the record there's nothing that the rail can point to this says this is ok there is nothing there is a decision makers there's no i didn't even then there is no discipline policy in the record there allege rule violation says immediately but then they sit there and say promptly it's a subjective interpretation that's that's all that's all collective bargaining corps not a discipline policy there is no discipline policy in this record to support any ardley to support any discipline whatsoever the last chance agreement says we see our discipline policy whenever that's not an f r s a simply does not we brief that issue exhaustively in our reply brief of the reasons why and just by virtue of example the temporal proximity argument the are the i and the l j c i would who relied on to try to fill in that finding in its board company he stood on a last chance agreement he was already at the dismissal stage and as says and as for the fact the decision maker didn't follow the recommendation he didn't follow it in mr rallies favor how can that be evidence of intentional retaliation the f sufficient to affirm as the government argues and and all rest on the point thank you thank you counsel