you just great or my name is david webb the ever present dave sanders disc case as you know arises under the energy and reorganization act and what i'd like to do is go through talk a little bit about protected activity and then causation and get to the issue of whether there is a clear and convincing evidence that ian would have taken this course of action but for the protected activity so maybe at some point in your remarks could you also address why the plaintiff waited three months to file the amended notice of appeal with regard to the jury demand issue i can address that first whenever you want  well i was not the lawyer below i'm that's why i said the plaintiff i understand so i don't know why not take it took that long but what i can say is that i think it's clear from the  especially the order denying the plank this motion to amend and stay the proceedings pending that time aside this outcome that the jury trial he she was very much at play and from that i think that it could be inferred that there was an intent to raise the issue and that the mistake with inadvertent and secondly i think under the stuart test is that there was no prejudice here to the defendant and energy northwest and that would be i would just rest on the argument i guess i was curious about the fact that the original notice of appeal was pretty specific with regard to challenging other issues in the district courts october fourth two thousand and thirteen ruling but there is no express reference to the order striking the jury demand in the in the original notice of appeal all i can say is time and as i think it was inadvertently omitted i don't  two types of activities involved the challenge to the severity ranking of the condition report charlie versus problemo and also dispute with mr pease about security procedures and badgering are you alleging that both of those aspects of her are protected and both of them causally related are you limiting your argument to the severity piece i think the badgering procedures is generally an issue here and would be implicates safety procedures and the reason is because the badging procedure is what governs who can come on to this no no i understand that the i guess i wasn't clear whether you were arguing both of those aspects of your your argument congress both of those things or just want to i think the main point is that the  ranking issue in the thoroughness with which the the condition report was investigated be it under the brabo the charlie distinction or designation scuse me that implicates essentially the integrity of the badging for seizure and that this is what the argument was between ok are you so they're related i understand but doesn't that go to the speed with which the issue is being addressed not the employers refusal to searching review trying to get to the sort of the causes and what could be the potential ways to remedy it and prevent it in the future that that that response is because it's more thorough and the second is that is that i ha ve to confess i don't understand the alpha bravo charlie delta distinction that it appeared to me that it was a timing issue a sense of urgency as opposed to a refusal on the part of the employer to address the issue well the only thing i know about the distinction is dealt simply a trend charlie is identify a problem doesn't require much  work bravo distinction is identify the problem figure out what some of the causes might be and then figure out how it can be prevented in the future so there's an intensity if i'm fasting creation difference as well as a timing difference in your view would affect safety absolute or potentially safety or security is going to finish up the alpha was required of a full root cause analysis meeting with all of the interested parties so i think that very much so just for the intensification or the intensity of the remedial measures as what implicates safety and i think that falls squarely within the standard that protected activities supposed to be and for the rights of safety and when weren't about the same level of responsibility in the administration and my right i think that's roughly to your honor and so what we have is a quarrel between two people at the same level in the safety responsibility i think there was a quarrel but i'm what i'm what i'm more interested in are what i think is more important is the implications of that quarrel i know but we're dealing we're dealing with a whistleblower and somehow or another he has to qualify as a whistleblower they start out with whistle blowing at each other is that a fair characterization of it i'm not sure that i would agree with you your honor respectfully well they were complaining one was complaining that i want the one assigned to you to have a higher rated correct and that one had one violation one individual accused or fail to turn in the badge on time they reported this they reported their disagreement to the management right and it's up to the management to discuss to decide whether to assign it a certain level of response that is true now where or where precisely in anything that this man uttered to anybody shall we label whistle blowing i think the court should label whistleblowing as i've said when mr sanders wanted to make sure that there was consistency between the standard and the wanting is a private thing what did he say or do that constituted whistleblowing he pointed out to not only a peer but also with management present the fact that there was not a consistent approach to the to the designation of these various flaws in the in the badging procedure that came up under these condition reports and that was the whistle blowing activity so so he he was whistle blowing about the conduct of management not in not creating this one is more serious correct who did he tell about that the issue was raised i think mr the plant manager mr because he was there he hired that excerpt i have says he told mr because i don't agree with their standards i believe they're lower standards on what we're expecting from supply right and then they went on to say other things as well i think that's alerting the plant manager to their lease mr sanders view again rightly or wrongly that there was a discrepancy in the standards what do we do with the fact that he essentially withdrew his concern the next day i would say that that's a disputed issue  don't know that he didn't i think that he lodged his objection and got on with it but i thought he said something to the effect of all of you guys do what you're going to do and in essence the ceding to management's decision is that a contested issue is does he say i never said anything the next day he may have he may have conceded the particular method not that the issue was being correctly decided but that he would isn't going to fight it anymore i think there is a difference well i guess the question is if you're asking me to conclude that he was engaged in whistleblowing activity the fact that he essentially a seeds to the management decision and makes no further complain about the issue makes it hard for me to conclude that it was a sincere whistle blowing effort regarding protected  activity at the time when what i understand about mr sanders motivations is that he was concerned about retaliation and that's why he didn't push it any further so the battalion happen anyway but and what evidence was there in the summary judgment record from which the jury could make that conclusion that he was concerned about retaliation after he said whatever he said the next day i think the best evidence that i can think of right now your honor and i'm happy to go back and check but is that it was in his testimony in front of the l j how many months after well he was describing what he was thinking i don't think that he i mean i think the concern at least that you're hearing from me i'm not trying to speak for my colleagues the concern i have is whether or not he can even make out a prime a facia case of protected activity and this is a very thin record compared to some of the cases that we usually see involving  whistleblowers as far as i was going to at least in the in the in ray williams case which i cited in my briefing and in that that decision cited i think six than eleventh circuit authority listed out three different criteria to determine whether there is whistle blowing activity or not and one of them was whether the whistleblower himself reasonably believed that he was pointing like there's got to be an accent the district court correctly determined that the plaintiff mr sanders did not engage in any protected activity as that term is defined under the statute under the energy reorganization x section fifty eight fifty one a one which is fairly specific in the in the types of activities that elicit protection under the act as well just speaking for myself i have difficulty with that piece of it because it seems to me as i read this summary judgment where we have to take all facts in favor of the opposing party  the plaintiffs did tell the plant manager that he was concerned that this incident was listed or this procedure was listed at too low a level of investigation that it's not it's a lower standard than is appropriate standard about safety standard about security following that there is the conversation that the plane of hassle with two of the vice presidents asking them to change a security clearance procedure that mr pease had refused to change when asked after which mr pease confronts him and says that's twice an so why why couldn't a reasonable jury conclude that these efforts made to the plant manager and to the vice presidents were an effort to strengthen the safety and security procedures the jury doesn't have to believe it but why isn't there enough evidence to survive summary judgment a couple of reasons one your own of the incident to which you just referred occurred in march two thousand and eleven the only incident  only action that the plaintiff is pursuing here an appeal occurred in october twenty eighth and that's this issue between labeling the condition report a bravo or a charlie now just in just a moment the incident where the two men mr pease and mr sanders had a dispute again this meeting these these arguments were in private they were never in front of the management concerned an issue regarding the location  contractors would would undergo the badging process that is no longer being pursued on appeal mr and i know that that was actually the question i was trying to pursue with opposing counsel  may not be of a direct claim but is it evidence of potential potential evidence of motivation that would be relevant anyway to affect or i could could say no never but what is not disputed is that the decision makers here mr atkinson mr because he mr swats he the chief nuclear officer had no knowledge and there's no evidence in the record that those three people who were responsible for making the disciplinary and ultimately determination decision had any awareness of this incident where the two men had a disagreement and where mr pease alleged to have said to mr sanders that's twice and i know you r between mr pease mr sanders mr sanders testifies that mr pease did not state anything to him that he considered threatening or talking to retaliatory nature the two men had a disagreement the next day they returned to the meat  lets use a completely different kind of discrimination let's just say someone comes and reports that women are underpaid in the company and they have a long heated discussion and finally the person says never mind heart i give up i'm not going to pursue it does that that mean they didn't complain and they can't be retaliated against if i stop complaining at some point i think of these value hypothetical and  the passage of time here certainly i do think that those sort of facts wouldn't support a claim under the energy reorganization act but is it because there isn't whistle blowing or is it because  causation because those are two completely different things though it does it does it doesn't rise to whistle blowing under the statute the statute requires an individual who's asserting or engaging protected activity to identify a violation of the energy reorganization act or the atomic energy act or one of the n r c regulations none of those issues were raised here well it has a catch all that protects an employee's quote and any other action to carry out the purposes of this chapter or of the statute so there's a pretty broad protection when workers call to management's attention concerns for safety or quality so why wouldn't it fall within the  there is something let's say under osha and if someone comes and says you know there's an open flame over here if it's a problem i think that there's a problem there and if they don't say oh sure the somehow of a can't be retaliated against because i haven't brought a safety complaint and that's sort of the implication of your argument i think in those circumstances i think that the answer your question would be yes depending upon the facts it may trigger valid even though it's clearly about safety and if someone says i'm going to fire you it's clearly says i'm firing you because you complained about the open flame you're outta here i don't want to hear that kind of stuff and even though it's clearly about safety of the workplace that you're saying that that summary judgment from the employer not into that hypothetical absolutely not and the facts of this case though none of those things occurred mr sanders never asserted that the dispute the way it was resolved the way you ultimately agreed to it being a charlie vs a problem was acceptable number two there is no evidence in the record that by by labeling these conditions or condition report or bravo versus a charlie means anything materially different the way in terms of how the prime time i thought definitional way they got more scrutiny as they worked their way up the ladder i thought that was part of the definition i don't believe that's correct your honor i think it's primarily an order of priority if you will well even if that's true why why wouldn't that be sufficient because i don't think it's the issue here is it was the company didn't ignore the issue become pany it excepted the issue and was addressing the issue well so that's a let's go back to my open flame example let's say well yeah we know there's an open flame but we have twenty five things we're going to fix before we get to that don't worry we'll get to it maybe in six months still no longer a safety issue if those facts were present in this record i would be able to make that argument with a straight face the facts of this record the dispute between these two men  was simply a matter of what are we going to get to it ok but timing can be a safety issue or at least in theory it could be and intensity of investigation at least in theory can be a safety issue or a security issue  could be but again on the record of the case there is no testimony there's no evidence that the distinction between a problem and charlie designation had anything more to do than the order in which they will be adjust they're all considered to be important issues they're all going to be addressed and they're all going to be adjusted promptly so you would disagree with mr would be as articulation of the four levels as being more than just a timing issue yes primarily there is more work to goes into it it will a root cause analysis is a very complex approach to problem solving and that's very different from sort of a quick look see and i don't know how that gets factored into the scale of  but i suspect there's more to it than just timing they pretty much pursue root cause analysis on all of these conditional reports in order to root cause analysis as i understand it and i have to famine to expert on the subject is is a relatively complex decision making model that takes time if properly done and can result in all kinds of things besides simply addressing the particular issue that started the inquiry and that's the nature in which they just these condition reports all of them contain or excuse me are addressed with the sort of thoroughness if you  will that that would be typical of a root cause analysis now the thoroughness i should say the extent of the scope of the root cause analysis is going to be defined by the issue that the condition report identifies obviously and the issue as i understand it was a retrospective examination of how we were handling the return of badges from contractors who were permitted with the badge is to enter an escorted into sensitive areas of the nuclear power plant no it was the these are people who had left the the employment or the service the contractor getting the badges back the veges had to be cancelled correct correct ok so it's a retrospective analysis of how we were handling the return of these badges that otherwise were still valid and permitted the holder essentially unrestricted access to very sensitive areas of a nuclear power plant that's true but in order to receive a bitch or an honest court access they have to first pass effect a background check a criminal background check so anyone who has one is considered by the national excuse me the nuclear regulatory commission safe to go within the protected areas within the plant but still it is important in the company acknowledged it was important to timely cancel those badges when either employment ends or their service was a contractor  and in these two instances they found reports were made which mr sanders did not initiate or participate in anyway it didn't affect his department with respect to this one that mr pease and he argued about nevertheless they were important issues and they were addressed and no one contended that they were trivial or could wait another day  i think ultimately at the the district court identified that this was at root a personality dispute between these two gentlemen mr pease mr sanders but the issue did not specifically definitively identify any safety issue why does that have to be definitive for purposes of summary judgment doesn't it have to be definitive in your direction for for to be appropriate for summary judgment well this court i don't think is has had occasion to pass on the issue to eleven circuit cases and one six circuit case which are the leading cases if you will  what they call it oral argument but yeah i think that's i don't think because the issue in back till if my memory serves me right had to do with fire safety as opposed to in the gentleman who initiated the complaint repeatedly and no action management was in acknowledging that the issue needed to be addressed so the circumstance should be the facts i think are materially different than what we're hearing the fact that there was a personality this disagreements ok didn't that precludes any finding to the contrary but again on the evidence of the case here mr pease was not involved in the decision to discipline or terminate nor was he nor were the decision makers aware of this argument that these two gentlemen had seven or perhaps seven months prior to the time that his employment was terminated would you agree that if we were to decide that the case has to be on the the issue both of you have been addressing the district court has never addressed the employer's justification for the terminations the fraudulent submission of  boyfriend of mr sanders daughter that's correct your honor the court court noted it but didn't decide it so the courts thought janetta clearly dicked it would be subjects would need to be explored further minutes quickly return to the idea that the march two thousand and eleven i think is touchscreen were accurately surmised did concerned the ongoing issue of safety standards or the bad which by implication  had safety concerns and it was that statement by mr pease that's twice iou i think that exhibits the retaliatory animus and that statement was allegedly made at that same time as this pease was not the one who classified this one way or the other or was he that's correct your honor and the fact that one was classified as a c is what we're talking about as a dereliction in safety right i don't think that the case doesn't boil down to one particular i know it doesn't but you're complaining about the classification being a c and stead of of the the thrust of the position  is that there were discrepancies of how that was done and mr sanders was concerned that there should be no discrepancies and that he was advocating for a uniform system that was played out in these alpha bravo distinction ultimately would be somebody else that would make this and so it was the decision makers on this that put in your contention the foul ball in this whole procedure they classify did wrong it wasn't this guy it was the people there were listening to the two of them right right now are you are you claiming that  blowing was done to call attention to the decision makers or to call attention to what people used to a say the whistle blowing related to the inconsistent standard and i think if the court looks at the williams decision and its three criteria that that's what is that's what should come into play that the concern expressed must be specific to the extent it relates to a practice condition directive or occurrence and i think it's the practice here that is at play but it's not to conduct  piece the the the dispute between p s and sanders exposed the fact that there was not a that there was not a consistent standard approach to these to these distinctions and i think that is all that's called for under the williams criteria that i would ask this court to adopt as that's as consistent with the sister circuits the six and eleven and that under that standard at the summary judgment phase i think that there are just  issues of material fact that should allow this to go for you understand you understand in a whistleblowing context my concern do you not i do your honor and you've answered it the way you want