of course thank you judge gould may it please the court good morning my name is jacqueline holmes and i'm here on behalf of the appellant b n s f railway company i would like to come to reserve three minutes for rebuttal subject of course to what you just said just school of the n s f dismissed the plaintiff in this case because he submitted a dishonest time sheet that he failed to sign as our rules required he was insubordinate when he refused to leave work after being asked told by a manager to do so and when he and his crew failed to work efficiently efficiently on february twenty third two thousand and ten spending more than five hours on the job to and accomplishing none of their assigned tasks plaintiff allege that he was just missed for engaging in three activities protected by the filler federal railroad safety act the jury ruled in be s f favor as to two of those activities finding the plaintiff and not satisfied his burden of proof as to the third the sole claim on which plaintiff prevailed the district court misled the jury and put his thumb on the scale and in the in favor the plaintiff in two ways first he improperly granted summary judgment to the plaintiff on the contributing factor element of his claim which meant that the plaintiff only had to prove protected activity and then as to protected activity he made several interpretive an instructional errors the court should reverse for both of those reasons i did receive the court's order from last week and i'm prepared to address the issue that the court outlined with permission however i'd like to start with and address the contributing factor issues and then move to protected activity and address the court's question in the first portion of that argument with respect to the summary judgment issue the district court granted summary judgment on an element of the plaintiff's affirmative case in which he had the burden of proof concluding as a matter of law that the brake test played a role determining whether they said genuine issue material factored in was that an error or because it that the court never goes on to talk about what happens when you get beyond the prima fascia case correct and i think there's a lot of loose language frankly in the decisions on this on i think he meant here is that the plaintiff did not put forth put forth his affirmative case and he granted judgment to the plaintiff on one element of that case he you did use the phrase prime a face you but i did not mean it i don't think in the sense of the mcdonnell douglas burden shifting which we acknowledge doesn't apply here so what happens under this statute is the plaintiff proves the four elements of his claim and if he does so then the railroad has an affirmative defense to prove by clear and convincing evidence that it would have taken the same action notwithstanding the protected activity so there's really only two that the recent asking this is because the the statute seems to have in the regulation seemed to have three different  s so when the regulations in origin commence investigation there has to be a prenup then there is a defense and then the secretary has to find a violation but do you think that the the elements in the regulations that for example temporal proximity is enough to show a contributing factor you think that is and for it to prove a violation as well as the affirmative case i don't and i'm sorry for not being clear about that i think that it is you know so there is a somewhat lower standard in the regulations you're right and this is what i mean about the loose language in the decisions i think once you get to a decision on the merits in a court whether it be before a ministry of law judge or in a court you shouldn't really be talking about  anymore that's a much less that is a bit of a lower standard that allows osha to decide whether or not it's even going to investigate the claim i know she does dismiss some claims for example if they're untimely but if there's a temporal proximity oshie usually will commence an investigation but that doesn't mean they find a violation of the temporal proximity so that if if the only thing he had to show was temporal proximity between the not doing the air testing and being terminated he certainly showed that if that's enough then there there wasn't a genuine issue of material fact that it was a contributing factor if if that's not enough and then in s f put on evidence as to why it was dick and taking the facts in the light most favorable to n s f it was a genuine issue but but i'm not sure i'm understanding whether it's temporal proximity is a not so under the case law that's developed in the in the courts of appeals uniformly it's not enough by itself right to enter judgment for the plaintiff as a matter of law there's not a single case that holds that the closest appellate was ok but it is is that enough or that pro of whatever we're calling it the premise fish a case of it's looking at the regulation so it might be enough to get osha to investigate the claim but once you're in federal court that's no longer an issue the question then is did the plaintiff prove th right the judge referring to is the low bar i think that he was referring to whether the plaintiffs prove the claim and the contributing factor is any factor alone or with with other factors right so it's not a principle factor the motivating factor i think that's the low bar language the regulations as the claimant has to prove by a preponderance of the evidence did they just record atop that so that's the standard he should been applying i'm not one hundred percent clear myself what standard he was applying but that's certainly the standard he should have been applying and that's the standard that the appellate courts have ruled have uniformly applied right there are no cases  evidence including mr jones douglas jones saying that the test was irrelevant to his decision so under normally under normal summary judgment principles we would ask to show so that he was entitled to judgment as a matter of law on the contributing factors so that he said there was a case that they had the air test was a contributing factor as a matter of law what did he have to show correct so he had he had just so we would argue under the appellate standards that have developed in the seventh and eighth circuits he had to show intentional retaliation right it's not and this isn't just an anti discrimination statute it is not enough to show simply that two things happened even if they happened close in time to each other that's the cosey our case in the seventh circuit right it that is the davis case the burton case the iraq ok so not of those cases enter judgment for the plaintiff and under the district court's theory they would have if his theory were correct there aren't any cases that enter judgment for the plaintiff there are cases that say the plaintiff gets a trial and of course that's all we're asking for here on this element i think you're exactly right that if you take the facts in the light most favorable to the to the railroad here there's no way to grant summary judgment unless you say temporal proximity alone is enough in no case has said that and this this is and would be the first i mean again that a summary judgment opinion which the seventh circuit refers to went in that direction and that's why the seventh circuit reverse they said that's not enough you have to show a proximate cause you can't just show some factual connection that is not sufficient so i think that's really the key point and again there and there's no argument no viable argument that this was a harmless error either the fact that the jury rejected whether  s f had proved by clear and convincing evidence its own defense doesn't say anything about whether they would have found that the plaintiff had met his own burden and indeed when they were asked to is to other protected activities they found that he had not and there are some additional evidence in the record a three page e mail doesn't mention the break just so you certainly can't use that as a matter of law to say that the break test contributed certainly it's evidence the jury can consider there's no question about that and a jury might conclude and there may be evidence in the record i don't get i'm not seeking judgment as matter of law on this question there may be evidence in the record that a jury could have considered and determined that there was a contributing factor that's possible but that's not what happened the judge inexplicably to me took it out of the jury's hands even though we were having a trial anyway and there was no basis to do that in the law whatsoever there is no case that has been cited to you or otherwise that justifies that ordinary summary judgment standards do apply here and temporal proximity alone is not and there was even more than that the employer in that case had all the evidence they needed to charge the person before he reported his injury which was protected activity and didn't and then they charged him afterwards even there the third circuit just said there's not overwhelming evidence of retaliation here and he gets a trial they did not say he gets judgment as a matter of law that's what the just reported here and it was a mistake with three large protected activity if i may i would first like to address the issue that the court  raised in an order last week that is whether to a one hundred ninety two requires proof of an actual violation of federal law or whether sufficient for the plaintiff to show that he reasonably believed that he had refused to violate federal law i think the better interpretation candidly is that an actual violation is required there are several reasons for that beginning of course with the statutory text as the court's order pointed out to a one hundred nine a one refers to plaintiff's reasonable belief about a violation and to a one hundred ninety two does not it simply requires the plaintiffs who refused to violate or sustain the violation of federal law under normal principles of statutory interpretation that omission is meaningful and suggests an actual violation in the reasonableness is enough i think further though under the text of the statute the statute contains a refusal to work provision into a one hundred ninety one b and to a one hundred ninety one c those two provisions permit an employee to refuse to work when confronted by a hazardous safety condition or to refuse to authorize the use of hazardous safety equipment but they were part of the employee to jump through some hoops they can't simply refuse to work they have to show that there was no reasonable alternative they have to show that there was an imminent danger they have to show that they had advised the carrier of the situation and gave the opportunity to correct if you interpret subsection a to as the just reported here to permit simply reasonable belief i think you undercut those refusal to work for patients because you're going to allow that this is a very heavily regulated industry there are hundreds if not thousands of regulations that potentially apply in any given situation and if you per read subsection  two to permit that sort of an argument then i think you really undercut the additional requirements that the collect congress laid out before permitting a refusal to work it of course makes sense under a two if there's an actual violation to allow the employer to refuse because in that situation you've got a regulatory agency that's determined that it's problematic but this is quite different than that as has any court other than the district court here inserted reasonable belief into the eight to it's a question of first impression under the first as far as i can tell the only a two case that i know of is the morgan vs norfolk southern case that's cited in the briefs and there there seemed to be an agreement and so it wasn't discussed that it would have been an actual violation as far as i can tell your honor i will say though that there is an analog the surface transportation assistance act is the employee protection provision that covers the trucking industry it's at forty nine u s c three one one zero five similar to the first it permits a refusal that case is to operate a vehicle a truck because the operation violates a federal law or regulation that's three one one hundred five a one b little i or because the employee has a reasonable fear that it would be unsafe to do so that's three one one zero five one little two in light of that second prong course of help with the first problem requires a showing of an actual violation and in that regard i would point you to the eleventh circuit's opinion in coke foods versus secretary of labor it's reported at seven one two f third four seventy six the two thousand and thirteen opinion which the eleventh circuit held over the objection of the department of labor that that first problem requires an actual violation and the reasonable belief is not enough so i think that's the closest i have in terms of the case law but this question is a bit tangential but the district court made a determination that in this case it was not required the test was required by law but it's as a matter of law of relying on this very old thompson eighth circuit case which is i didn't find so in your view it is this whether it's a transfer action or a switch action is that a mix question was act as a legal question or is it a factual question so i think here the district court viewed it as a legal question and i don't i don't have any basis to disagree with that i think there certainly were a lot of facts put forth and i think part of part of the problem we have in addition with what the district court did here just coming to the end of my time is that he informed the jury i'm going to make this decision because it's complicated and then he found it was not required and then he refused to instruct the jury that it was not required and under his view of a two reasonable miss was enough so even if he had instructed the jury it was not required the planet still had a pa prevail the problem i think is that that instruction give the plaintiff a second legally impermissible path to prevail right he now has we can argue he nonetheless had a reasonable belief but he can also argue the test was not required and that's exactly what he did and that is prejudicial being s f was entitle to the correct instruction on that so i think it ought to go back for that reason as well absent any additional questions i will reserve the remainder of my time thank you this morning about ten minutes ago is the first time in this case at the district court level at the briefing at this court or the briefing for this court that being this f has challenge whether or not reasonable belief of a violation is a requirement this is it was not the district court's interpretation of a two this was plaintiff's counsel's interpretation of a two trial defense counsel's interpretation be to  and according to the appellate brief appellate counsel's position of a to continuously throughout their brief they acknowledge that you know if they challenge the may or may not have been hinges everything on good faith the requirement is that the refusal has to be done in good faith and courts have interpreted that good faith requirement to include a subject and object of reasonable basis first i would direct the court's attention to two one zero nine eight seven which says accurately report out it also doesn't say refused to violate an actual or to perform an act which actually violates federal law rule or regulation so to the extent that the court can look at this and say well it one contains reasonably believes language and a two does not i think the court also needs to look at two  seven and recognize that congress did not include in the accuracy requirement in the two sat secondly how does that help you understand how have an effects the analysis and if it's incorrect in doing so the railroad and the court may have an argument to say well that's not required or the entire that's not protected under the f r c because to one hundred ninety seven protects actual or accurate reporting of hours of duty but there's no accuracy language into a one zero nine eight two so you revert back to the good faithful modifier that governs two one zero nine additionally if you look at two zero one zero nine a for which deals with notifying the railroad of it work related injury or illness courts around the country have found that the critical inquiry and that is whether at at the time the employee notified the railroad of the injury he or she reasonably believe that the injury was work related if it turns out that the employee medically is wrong that and that the medical or that the injury unless it turns out was not work related there are still protected under two one hundred eighty four even though two one hundred ninety four does not include a reasonably believes language and  the district in minnesota held that way and smith bungy versus wisconsin central the western district of virginia held that way in cash vs norfolk southern and finally the different from oregon it indicated that and thomas v union pacific so said these cases if you're going to inject the requirement that an act actually violates federal law regulation counsel for the railroad is right this is a heavily regulated industry there are buxom books and books governing the law rules laws rules and regulations governing these it ignores the practical realities of the workplace of assigning to the railroad employees out in the field and vested in them with well if it turns out that you are wrong even if you had an objective and subjective good faith belief that you were right which the jury found that mr rickard did you're not protecting the railroad can do whatever it wants and the f r s  remedial statute that shouldn't be interpreted that way it has to be read as being protective of employees and the district court came down on the side that you know while it was  exceedingly close decision after i think at that point six or seven days of testimony expert testimony from both sides legal argument from both sides and an intelligent federal judge sitting and hearing it  he found it was a very close call and i think in his order to actually record twenty three he indicates that this is a twilight zone case that i have the legality of whether the error test was required by federal law is is that what you're referring to that was close yes that is a question of law or fact i asked opposing counsel at the district i thought it was a legal question based on his very old eight  required by federal law or not should the jury because it seems so highly factual i think there are absolutely factual questions that come into play at least in theory i don't know if that's necessarily a relevant question here as i put the i don't believe that an actual violation is necessary under the f r s and i think the case law supports th can you address opposing counsel's view of the district of the view that the just record urged at summary judgment in finding there wasn't a genuine issue of material fact and contributing factor  cases that talk about where if you cannot explain the adverse action even if you win the evidence in the light most favorable to the railroad if you can't explain the adverse action without some reference to the protect activity that's that the air test was irrelevant to his decision that plaintiffs should be dismissed very serious rules violations now under normal principles of summary judgment we would say the jury could credit that testimony this is in the record and i don't believe it's even contested in the record is the railroad allegation that mr rickard failed to work officially even heard today that he spent five hours without accomplishing any of their assigned tasks you know i would disagree with the factual basis for that i understand that that's not me not a summary judgment question but but well when questioned about well what was the problem what what was the in the fish and c the only thing railroad witnesses not plaintiff's witnesses railroad management officials could identify was performance  they said that he spent five hours out on his shift and in the conflict any of his three tasks and of the five hours they say the air test took twenty minutes and they say it's like saying we what it what it would be as it is if the railroad had aggressively questioned them and said well why are you taking a lunch break what are you doing i'm not from around here but we don't take lunch breaks from where i'm from you know after you've taken the lunch break hauled mr rickard out of the room to why you tell me why you took this lunch break when when the facts are considered even in the light most favorable to to the railroad it it a lunch break that may also be sufficient if you know what i think what i interpret judge last next order referring to the relaxed standard or lower burden  mean that contributing factor is is not what it me buddy that deals with employment litigation is really used it were much more familiar with the mcdonnell douglas or your substantial motivating factors those lines contributing factor require sufficient significantly less than that contributing factor is any factor any factor if the thing played any role whatsoever if any part of the end efficiency was performance tour or excessive damages that wasn't addressed that was i'm sorry i missed the very last part of your question was not addressed in the oral argument but was was are several questions on remitted or of damages both on appeal and on cross appeal turning first to the challenge of the the back pay award from which  emotional distress was around five hundred and seventy five to five hundred ninety thousand i don't remember the exact dollar amount as i as i stand at the lectern the and  damages i i believe it was approximately two hundred thousand and if i'm mistaken on either those numbers i apologize i'm this is in terms of the emotional distress section specifically the jury heard evidence specifically from mr the plaintiff's wife mrs record about how devastating this effect was  important to note that the district court recognized just how high of a burden the rim militar is the district court i think even says that from the bench he disagreed with some of the jury's verdict but that it wasn't sufficient to take that amount probably is but but this isn't it this doesn't rise to the level of being so shocking to the conscience but based on this this record the jury had its ability to make this finding and it did make this finding and that's why the district court did not disturb it fitting for you for that for the punitive damages i think the same argument applies i understand that the railroad challenges not not only the amount of punitive damages but the availability of punitive damages in this case the the jury instruction on that on punitive damages is fairly straight forward into the point and is not challenge here on appeal the fact that the railroad has some written policy in place that the railroad was free to argue that and did in fact argue that to the jury and the jury rejected that argument i'm nearing the end of my time here and i would be remiss if i didn't at least briefly address some of the issues that we raise on across appeal unless the court has any specific questions about not not seen any i'm going to turn one question did you get to the district court's decision to treat the jury's verdict on front page as advisory and what are objection was your honor was that we agreed it that the railroad or that the question of is it going to be reinstatement or is it going to be front page that that was the determination for the district court i don't i don't think either party challenge that we did maintain that after the jury returned its ver that that is the verdict amount and it's subject again to the remitted or doctrine and in terms unlike emotional distress where it's it's more a fear fro pay has economic testimony behind it where it can it can be linked and here i don't think there can be any at least credible argument that the the front page award was so excessive as to require  part of the reason why i took this issue so seriously is what happened is exactly what i was concerned about happening and raised to the district court when we were taking exception to the jury instructions the district court said you were i'm not removing the tax gross up from the case you're free to argue it but he never gave the district the jury any instruction on it and he never gave the jury any when i seen the instruction he never  think the jury instruction when you've outlined the category of damages that were available the jury come in with a higher amount than had been asked and that was i think the posing counsel says it was thirty nine point six percent higher exactly what your experts had said at trial was the amount that would be hit for a tax credit the council also stated that you can't explain any of these numbers by was higher than what the economists had testified to that being said the economist report had been dated or had been based off of a september two thousand and fifteen trial date which was then vacated and trial didn't i i believe it's pronounced creek but it looks like crichton that based on his testimony in his earnings where he was in a comparable spot to mr record on the seniority roster that the dock pay award is entirely supported for that basis and that's also in our post trial briefing we're opposing the railroads request for a minute or on the front page thank you thank you very much else repeatedly that the brake test was irrelevant to the overall slowdown that what they objected to was how long it was taking the crew to do anything i question the necessity of the test but by all means if you're going to do the test take that time if you take those facts in the light most favorable to be n s f you cannot reach the conclusion that there's a contributing factor here as a matter of law you likewise can't reach that conclusion under the suppose maxim that if you can't explain the adverse action without mentioning the protected activity that somehow that that means that there's a violation as a matter of law there are lots of cases late  cases for example where the injury report is the protected activity and the rule of violation is reporting it late you are mentioning the protected activity that's the the davis case the burton case the black or b case from the eighth circuit which is the date forty nine f third seven sixteen all of those cases hold the plaintiff gets a trial not that the plaintiff gets judgment as a matter of law that's simply not the law and i think if there's a new trial it should be it needs to be a new trial on all issues because as the seventh circuit noted in cosy are under very similar facts once the jury is instructed that contributing factor has been met as a matter of law or it can mislead them as to the application of the affirmative defen so i think there there has to be a new trial on all issues if you order a new trial which we clearly think at a minimum you should do both for that reason and of course because of the break test instruction with regard to the a to question first of all i think there's whether an actual violation is required i think judge acute as you pointed out i think there's no question that the court has discretion to decide that issue whether you do or not is clearly up to you but there are before the court the court is not limited the particular legal theories advanced by the parties so again i think you certainly can address it and there is ample precedent within the circuit to do so you have also done it with regard to changes in interpretation statutory interpretation the most recent case that i found as hoax versus kits up ten support services which is that eight one eight f thirty five fifty the pin site is five fifty eight footnote eight and it had to do with a changed change position on the application of the federal vacancies reform act so again you certainly have the ability to do it a four i think is different counsel is right that certain cases have found that a four requires a reasonable belief but a force different because you don't have the contrast to a one in the same way because a want to a to deal with the same thing violations of federal law and you also don't have the problem of undermining the refusal to work provisions so i think those two things do make it different i will concede and perhaps the one thing mr bowman and i agree on is the statute is not a model of drafting clarity but i think good faith adds to the requirements it doesn't detract from it doesn't dilute the requirements of the statute it adds to them and so for that reason we would request that the court reverse and either enter judgment to be n s f or a new trial on all issues thank you very much for granted thanks we appreciate the least i think both counsel even if they don't