of course when you say at some precedented but did the m s f do anything during the trial by way of presenting any evidence at all that the assumptions that the expert used were incorrect of the we didn't i don't think we disputed the math judge progress and the math is not that's not my question that's not my question you didn't dispute the math and you didn't dispute the assumptions other than you cross examine the plaintiffs experts you did not present any underlying evidence that would dispute the basic assumptions about the availability of comparable work of being able to earn a comparable salary through other through other opportunities you presented no affirmative evidence at all about the marketplace in whitefish you did not present any expert testimony in that regard as is fact correct so i don't think that's entirely correct judge preggers then i understand your point but i do think that there was and now i think it is i think it is entirely correct and i think it's a key point i think you're asking this court arguably to rescue be an asset from not conducting a you know a vigorous defense and contesting these issues so tell me why i'm wrong so for a few reasons so st of all mr wilson has the burden on damages not the piano that's number one well of course and he put forth evidence he did put forth evidence but i would argue that that evidence does not support the length of the could you could you just go could you answer my railroad job that otherwise i may also cross examines now i'm if i'm wrong about that i apologize but i believe that's correct that there was an expert that the n s f presented but that all that that aside again there are two fundamental assumptions underlying the from pay awards here the st is that had he not been dismissed mr wooten would have stayed at the n s a for thirty years that assumption is the only record evidence that really supports that or arguably supports that an argument that the evidence was insufficient to support the the judge's eventual determination that he would have remained there for thirty years what more should he have introduced in your view he said he my father were heroes vice and i intend to work here all my life to what more should he have introduced what if what if to meet his burden in your view what else should he have the so i think i think judge he could have done more in terms of how well he could have done a lot more my question is what does the law requires that he do so i think i guess what i would say is if you look at the painting case  in the d c circuit is not this or that but it's the closest one closest one factually i could find the court there held very clearly that employees subjective in times no matter how sincerely held is not sufficient to establish that he will stay he or she will stay at a job for decades and there's a reason for that that may actually makes a lot of sense because there are market forces and technological changes that impact us and that impact every industry right ok i understand subjective intent because you put on no case go across examine his and now you're saying is case was in suspicions tell me what more he was required to put on in your view to make his case a sufficient case for frankly i think in addition to his since there had to be some objective evidence that that was a reasonable assumption ok tell me what it was that was what how does how does the plaintiff meet that burden he could have taken discovery for example on how long folks typically say in the job that's one thing he could have done and he could have put that on but i think the underlying point is there has to be some objective evidence beyond the subjective intent because there is a market forces issue here right and you argument a double edged sword i mean you know to get a job that pays one hundred thousand dollars and on and seems like that pretty unusual situation and if that's true and you can tell me if i'm wrong it seems like that certainly cuts against the argument that he was likely to lead and therefore lends credibility to his argument that this was just you know a great job and you know for a guy that only had a high school education i wasn't going to be able to make more money than when that great job doing something else so such a progress and it certainly cuts against the notion that he would  but the bottom line is he there are no guarantees that he would not be required to leave him voluntarily i'll give you an example thirty years ago the class one railroads in this country employed four hundred thousand people today that number one hundred and twenty thousand things changed and how do you make those arguments to the jury and did your expert argue those issues i'm sorry you didn't have an expert did you make the arguments that you're now raising on appeal in a factual way before the jury so i believe i believe that the company did argue that there were no guarantees going forward in the future but again the reality is well right but you're you're you're complaining about the lack of of data and i'm asking you whether you did a sufficient job in the trauma and i take your point judge praeger sen and i and all i think i can tell you is that in the end the evidence of record a stay for over a period of time to demonstrate the that is more probable than not that he would be employed over that period of time at a minimum to demonstrate that there is for sure because i'm not sure of more and i'm sorry that's fine except we do know we entered the fall judgments all the time you know lawyers don't always do a great job i just i keep coming back to the fact that you know he has to demonstrate that he had a reasonable probability that it's more than a guess to say that he would be with us for thirty years and he hasn't on that subject of intent is not do that and shouldn't do that remember market forces don't matter in the availability of the spawn job as a matter of family history doesn't matter i don't think again alone is subjective and times of the not because market forces do matter right i think i agree with you that market forces matter absolutely and moreover so the nd assumption underlying all this is that he's going to sit in place at his current job and never make any more money in the record doesn't support that he said himself he wasn't sure whether he would remain in the job is expert testified to his academic abilities his expert testified to other certificates he had the ability to to obtain in order to earn more money and the the fat and and to the possibility that he could one day own an agency and so if you look at all of that again what this court fundamentally has said about front page is that it has to be temporary and taking someone is bearing in mind that the amount of front pay in this case was six  several as he'd worked for the n s f and three years longer that he's been a lot of the time he was fired so that's a very very long time and if you if you look at that and you you you track that out it's quite clear that that is not it's it's not temporary height it's permanent the opposite of temporary because you've taken a thirty year old and you bridge them all the way to retirement that's  definition of permanent so for those reasons i think the front pages simply does not comply with the law of the circuit and not for that reason if you needed it and there's not much flow of the circuit as i think the if we were to make all of this circuit to control for and pay the evidence needed to get for a pay awards is there some circuits law that you suggest is the appropriate law to look to so i don't know that there is a that i would say a particular circuit as i said i think the closest case that i found is the peyton case from the d c circuit which indicated again as i said that the subjective intent is not enough to bridge someone to retirement if you look also at the case law as a whole it is extraordinarily rare if ever to bridge a forty year old the retirement much less a thirty year old to retirement for front pay again bearing in mind that it's an equitable remedy right mean other thing i'd like to say on this just so just to be clear so what the statutory text says here is that the damages awarded supposed to make the employee hope this damages award does far more than that because it so he was a federal judge so it takes it goes far beyond what what is required under the statute to make mr whole it's i'm shifting if i can if there are no furthe be appropriate so i think if it were at that level if it were the c e o perhaps not i think well here we have at least evidence of director of administration from montana the director of labor relations the montana division general manager the regional vice president were all involved so it wasn't like some supervisor just made a decision that's right judge and i think that's part of the point right that there is oversight built into this and that that could be viewed by a jury a fair jury as evidence that be an asset this making good faith efforts to prevent retaliation right there not just letting their think it also says that that is generally speaking a question of fact so i think that's something that should have gone to that could have gone to the jury the jury certainly could have been instructed that if they determined that these folks were sufficiently senior that the defense didn't apply but that doesn't mean that the defense doesn't apply out of the gate again here you have very clear evidence of anti retaliation policies you have evidence training you have evidence of again senior oversight which is an in many ways a good thing right obviously everyone disputes here whether that worked but whether but that's not the question the question is whether there are no facts in this record to raise a fact that should have gone to the jury on the good faith defense and i think there clearly are i don't think that these the individuals involved are so senior particularly regional bio presidents are regional vice president you know i don't i don't think that  gets to decide whether the person is sufficiently seen or said a legal question is that a legal question i think it's probably a mix question of law in fact judge but i confess i haven't thought about a lot of detail the reality is the judge didn't make that determination he just said i'm not giving the instruction and he didn't say why he didn't say that you wouldn't be in charge of what you wouldn't be entitled to the instruction to do our case will if a person sufficiently senior in the corporation w had made these decisions and so my question is can we find as a matter of law that the regional vice president or the montana division general manager or sufficiently senior again i don't think that would be the right outcome but i think i mean of course theoretically you could determine that but bear in mind that if that happens then what you're doing is discouraging the n s f from exercising just oversight because what you're telling them is if you exercise oversight you're not going to have a good basis and again of course the company doesn't do it is outrageous and you know i understand that in any event i think i do think that in this case it was appropriate   and of course answer any questions i think the problem in this day is that it's difficult to believe at least in my view that the jury possibly have gotten this right given the fact that the two kids of to to climb through tried together and that certain instructions particularly as honest police and business judgment which were clearly correct statements of the law were not given the efi a way injury case ask the jury to decide what actually happened in the case what actually happened with regard to the injury how it happened whether it happened at work or not through the lens of several years or investigation and the with the benefit of experts not ask you one question on this up in the end because it is impossible to believe that a jury and this is with all respect to the jury i want to be clear right i'm not blaming the jury here but it's impossible to believe that a jury composed who has just decided what actually happened with regard to the s p l a case then can turn around and forget about that and set it to the side completely which is what they would have to do to do this fairly and look through the perspective of being s f management to see what information they had in front of them and whether they honestly believe that there was that that mr wootten was lying based on the information they had and some of them were didn't know what you're arguing it seems to me is that when these two kinds of claims come together the judge has no discretion except to say and i don't i don't think that's quite what i'm saying i think in this type of case it was important and i think again i might be having a different discussion with you if if the honest belief instructions were given and the r and b business judgment instructions were given because i think that would have at least helped the jury understand a little cramer and the whole premise of not bifurcating this play in this case was that a whole these instructions were going to be given to them really right so i think i think that's the i'm not saying the judge has no discretion i'm also not saying by the way that this is the case in every f e l a f or a say that that's not what i mean but i think here where the question is a fall a claim you're asking the jury to decide in the with regard to the f l a claim what actually happened and then you're turning around and you're asking the jury to decide on the other hand what the company honestly believes and that's really tough to get ri decision makers well but the item to know here the key fact is that the actual report was one of the exhibits to the investigation that was forwarded to miss magn is and mr francis also reviewed there is no dispute that the decision makers in this case were aware of the protected activity so that's why kolstad enough up to review this had knowledge of the protected activity and in addition to what the court has said not only that but mr mag was who then presented evidence to the what's called a  discriminate against an employee if such discrimination is due in all in part to the employee's boppo good faith act done or perceived by the employer to have been done or about to be done a reason tha do with the statute if we read and so the whole issue about how and when under what circumstances a railroad should be held not to be liable shouldn't import the coast that instruction into where people get damages and if you know what is there what is it if you import the kolstad instruction and give be the operative language and compare that to the instructions this court gave there are the same the only part of the call stead instruction is the question of whether or not under agency theory the decision makers in this case they do have they go into that and they they they do a good analysis but i think supports the analysis of the trial court in this case so i have a separate instruction because the n s f has already identified who the management people are sufficient to make these decisions under their process could i ask you to can ask you to because i know you've got limited time address the front pay award for me and let me let me just give you an overview and i i agree with almost everything that you expressly said before about the absence of contrary evidence  this appears to be the longest front pay award in any reported case in the united states and if it's not it's darn close and i don't thirty years for a relatively young man and it's as if he had tenure at a major university so tell me i mean that at some point isn't to some number of years just to well you that is the the evidence of the court heard was not just the intention of the plaintiff you have a chance as was brought out is that he was accumulating seniority in seniority is like ten the more seniority you get as a railroad worker the you can work for better paying better condition jobs he loved the job and intended to go to want to work there there was no evidence from the and there was no skill and the reason as council used the term market forces under market orses where is a guy with a high school education going to get a one hundred thousand dollars a year job from an employer that has to have him to survive and where was the evidence on it when that latter point what was the evidence that the employer has to have your guys opposed to someone doing his job and that and the not only the seniority protections but the the ability of him to do the job he had no prior discipline of any tight and so and the other thing to show that the numbers that we used were accurate and reasonable for somebody with his ability and his credentials ilia industry the owner said that even though he was thinking of retiring he whole time and i'm sorry that it's four years but they hired a guy and if we had gotten into statistics we could show him how long rumored workers were but it was undisputed they had their because one pays supposed to be a temporary remedy that there come a point in time where where a court you just not allow it to go on for the rest of somebody's working life over thirty years well your honor the think it's equitable so i better rule because it was legal i would lift it up the jury well but i think he's right in the reason he's right is because to give all enforcement to the intent of congress and the anywhere in the state of montana based on the evidence before the jury we can't and so the only way even giving the best benefit to the railroad of of assuming he's going to have that assurance job forever  continually all the things of this so called him a liar in front of his family who were in the court publicly said he's a liar and they're not going to keep him and they've got rules  can interpret however they want to they could fire him for being immoral they could fire him for being dishonest with no definition of dishonest they've got so many of the general big rules which is another whole problem but it's not reasonable to expect that a they would take them back or be that if he went back that they wouldn't do it again to him he would be able to work can you go back for a nd because this would be this is useful to me and tell me again what evidence besides his testimony that he would remain there supports the the judge's determination that he would remain in this job for thirty years again i'm kind doing this off the top of my head his testimony not only of intense his testimony of the other workers that he knew personally had been there the whole life in other words grandfather that his grandfather had provided a good like hers family through that job that he wanted to provide a good life for his family through the same type of job that it was what would the mass more specific question what was the what was is you you can't be you're not an at will employee you can't be let go for no reason ok and that was your me was tell me what's in the record about that that's what i'm trying to figure all i can recall  is that he was a senior already he described seniority system how it works that the more seniority you get the better jobs you can get and the more pay in the more preferable jobs you'll have to what was the evidence for me as were specific question what record about that is what i'm asking without going back and looking i assume so i believe so and i'd have to go look your honor because i wasn't asked because that is such a a thing that if if they had raised the issue we would have got statistics from the retirement board of how long these guys work based on their actuarial tables we didn't need it but we would have had it rarer workers on average work longer than almost anybody else in the same industry in the country back was that specific statement was made whether we all know it which is why it wasn't disputed by the real road or their experts when when our guy has  that's the best job he could get with his education training experience that under the market force argument the couch was made of shows that the more likely than not w it again the economist testimony if you go back to that you will see what all he relied on and why he did it when he looked at all of these items and was subject to cross examination when they're asked if there was something in the record woody and it's not in the new woody it's what the loss to him is if they could show or would have shown that it's more likely not that he could have got a job to earn more money doing anything else it would have been in the record and you would see it the best job he could get was the real real job the nd best job in the record that he could now or in the future was the insurance job that's one was an employee who was the head of the office where the plaintiff worked and those individuals were not held as a matter of law to be sufficiently senior that they should that they would  ultimately prevent the good faith defense in fact the court remitted for for further fact finding on that so that's that's point one on passage you know another point though that i think is important here is that you don't know based on the instructions that were given what level of employee the jury found acted with malice we don't know we don't know if they found that it was the v p or if we if they found that it was james pino who ran a single site within montana and  thirty two thousand mile system and the reason we don't know that is because they weren't specifically asked that question of course but we also don't know that because no kill said it could save the town's construction was given and had been given and of course the jury could have been instructed on the sufficiently see your point then we would know right so i think that's on coal and then on front pay all i would say is that what you have here is fundamentally a subjective intent to stay in the job it is not and should not be enough to grant a thirty year old thirty years a front again this court has been clear that from pay supposed to be temporary this is the opposite of temporary even in god hard as an equitable matter probably not judge but i think i think if there were such it would be more along the lines of what you see and got hard where you had somebody who was unable to work because of the employer's misconduct right they were physically unable to work because in that case the employee had p t s d and she was bridge to retirement for eleven years something the court that called generous and that was thirty percent of what mr wu got here where and he's an able bodied individual who has hundred very highly highest possible scores on the up to two tests is that he's expert in minister so it's completely not comparable in the bone case another example the court awarded six years of french pay and said that that was longer than is generally awarded under federal discrimination laws you're hurt i'm not but i mean boiled down i guess i understand your argument just to be that pretty much as evil as a matter of law thirty years is just too law no matter really what the circumstances are because i don't know it's just too speculative to a game out that far into the future so i do think that's right judge but i would  strong for the client and the only other thing for i suppose that the plaintiff could have put on was some kind of statistical evidence about you know how how often do folks at his age in fact remain with the same route for the game it out in terms of what the industry is going to look like your cast it's a guess as to what the industry is going to look like thirty years from now it's a gas but what are you arguing them just asking judges to get involved in sort of micromanage these trials on economic issues nd best yuri's nd guess judges you know i mean really what you're saying is draw a bright line somewhere and this is just too far because it is i don't think it's because it is if you were a college and he were a tenured professor and he was thirty years old and he wanted to stay there until he was sixty five would he then be required to put in evidence said gee sometimes colleges fail or departments right and it wasn't to a thirty year old again if the notion that front pay is supposed to be temporary means anything this is out of bounds if there's you know anything then then i guess we can say that but if the notion that it's supposed to be tempered to landfall and is supposed to be temporary means anything then it shouldn't be upheld here if it were a ten year award would you have the same arguments i haven't thought through the exact point at which i mean i might make the same arguments because certainly one to three years is the norm and it's the typical especially against the only federal case the only th circuit case i know of and disaffected are all playing is god hard which was eleven but which the court really focused on very specific circumstances you had a fifty nine year old who's a bridge to retirement and they did it because she had been at the company the railroad longer than mr wooten had eight or nine years so it was it was roughly comparable to the length of time she worked there and she had a she had post traumatic stress disorder that was specifically caused by the railroads conduct those are the findings in the case right and there the court i think with some re the other way also where the railroad says look we're not going to put on any evidence at all disputing what the long term employment status is that people were not going to do that because we don't like  we'll just do not same or put on a minimal case and i will argue that it's excessive as a matter of law i mean isn't that equal concern to your argument that you know that it's to quote speculative for too long so just i guess i guess what i would say about that is there's always some risk when one party has the burden of proof and the other one's another one doesn't that one party but couldn't you have a lemonade is that burden of proof issue by putting on evidence potentially i mean certainly perhaps the railroad could have put on more evidence here than it did but i don't think that answers the question right which is whether or not fundamentally we're going to allow a thirty year old to be bridge all the way to retirement for thirty plus years of front as an equitable remedy again no courts ever done it that i know of but we do things like that all the time where we speculate about what length of injuries the length of the twenty months i mean we do the best we can with the evidence that were presented and i guess i just i'm unaware of any way that we would formulate a bridle on him on these issues other than finding something back and saying well we don't like it try and i guess i guess to say there's an