there i don't necessarily agree with that because i think that torture is the meaning of the word for but it but if you stick to a one in you conclude that it's an a one thing the language that they used comes from the national labor relations act and in particular a one of the act which says it should be an unfair labor practice for an employer to interfere with restrain or coerce employees and the exercise of the rights guaranteed by the act almost identical what you didn't look at is that the supreme court in transportation management in one thousand nine hundred eighty three nine years before the m l a was adopted said that the nixon motive adoption by the n l r b using this exact language the supreme court nine to zero said that that was a rational interpretation of the n o i or a provision so you have to believe that if congress knew what it usual course the standard requires requires the play to show that the harm would not have occurred in the absence of that is but for the defense conduct i would seize this is the background against which congress legislated in  a transportation management says otherwise transportation management says but that is the default if you don't have deference to any ministry who can interpret the language and transportation management's went out of its way to say this may be not be the way we would have been trumpeted it as a court in the first instance but it is a rational interpretation and we defer to again all ip that's exactly right i'm suggesting you have to do here is it may not be the way you interpret it by which i mean for over three rulings generally where this court accords considerable discretion to the trial have been around a long time and a lot of those were years in the district court where i watched that i read this court's opinion and district judges were criticized for not doing the balancing and all of the third he said no because in fact in this conversation cindy has specifically say you can't do it because you're disabled they asked to go to the question of whether or not there was a  tumor a sensible balancing it was not well articulated by the district court judge because if you're all quiet who was one of the parties to the conversation wasn't prepared to end in fact did not say what happened in that room why would it have been freer and  suggest that it all i think the problem is he basically the only justification the judge said court he didn't say anything about these other issues  summary judgment not sure why he was prepared to say at the summary judgment i'm making a call here that there's there's something that might come in from the truth but it really isn't the case is it ever that a judge who says i'm going to let this go and see how things develop a trial is really saying if i thought something might be put in summary judgment and bound by that and can evaluate a trial i mean that's where he was i'm sorry you can evaluate the admissibility differently rate because now you have the full facts but i think the specific question from ted smith that came does it change the harm it's not just this ability the risk of harm by not admitting and i don't think that changes from summary judgment to trial because the standards exactly the same could a reasonable jury this is evidence of discriminatory amas once you hear something in context and you make a judgment doesn't that make a difference in whether something not just on the admissibility front but on whether or not this is something which could maybe i'm saying the same thing and in other words that in part because asian in fact you know the word proof that the defendant's conduct did in fact cause the point his injury is a standard required when he could claim this includes federal statutory claims of workplace discrimination mean congress didn't even didn't frankly didn't even add a probation against retaliation for exercising our family rights let alone out or not out mixed motive point which the fact that they didn't even include that basic supreme court hasn't said anything about about the f m ok i mean the effen release as i mentioned contains is very obvious gap and congress specifically gave the department  understand the department of labor's position is the statutory language in front of us in a one in eight he does not speak of retaliation and as a result the regulator wanted to to determine discriminatory being retaliated against for having taken a family leave you haven't opposed anything so it would not i think it would be more of an unreasonable construction for the department to have tried to locate it within me to i know this court has been passing in several decision sided eighty but frankly that was not the focus in those cases and it didn't matter and where the court has really analyzed the issue  is are you skipping over and saying there's an ambiguity in the statute buying ringmaster and saying it doesn't apply in other words if the supreme court says this is the presumption that's to be made when congress uses this kind of writing which have they were having not definitively said how about language just to be read and therefore there isn't any ambiguity about whether that by which means but for causation not insure you asking us to blow past be supreme court language and nasser to get into chevron deference when there's really not an  whether congress had left an ambiguity in there is the starting point for you for a chevron analysis now you can disagree and you could really do that that the na language sweeps is broadly yes my question suggests it does but if you assume for the sake of discussion but nasser makes a statement that this is a default rule against which legislation congress passes will be measured that we presume congress means this one that uses right which one was it specifies otherwise doesn't bet stop chevron before you get to step one or you could say concluded that it was distinct from gross i know your honor concurred and said we needed to look at this issue more in depth and now we're doing that but nonetheless the court did say we don't the growth didn't apply it doesn't matter that we don't have mix the department of labor to take a position contrary to again this is reading natural the way i'm positing it would be reasonable for this department of labor to promulgated a regulation that flies in the face of the supreme court's assertion that without that it is to be but for a litigator it is to be excuse me but for causation in the absence of clear language to the contrary regulate well in our defense we did notice and comment regulation the calculus that the announces that the court should go through at that point isn't exactly announcer it's where there isn't exactly what the court would determine well no but that is the question claims to the jury he looked at the jury he said our focus in this trial will be comparing the evidentiary record the authorities own documents and the credible testimony of witnesses against the authorities explanations for its actions he said we believe you will agree with us that those explanations simply don't add up and that they are a cover up for the authorities true discriminatory motives already so obviously indeed there is a pretext doesn't take off the table the possibility that there's a mix of all of their stuff in the record that would support that and to get past this part of your argument  political did you did you make that kind of an argument at any point i mean is this just us kicking stuff around with the department of labor in a way that that's what they're getting  should presume that congress knows the regulatory background against which it's legislating so congress has accepted this interpretation and so should we but what is th congress was also aware of a pricewaterhouse decision quite recently congress was also aware that it itself amended title seven in response to pricewaterhouse in one thousand nine hundred one specifically to include the motivating factor language specifically to include it because it regulation that meaningful anything but subject to do interpretations so he could just as easily argue that it was aware congress was aware that grows had to dictated that fall for causation is the norm and by failing to add motivating factor think it supports the idea but is it that feeling to amend the statute is a natural difference by congress to that language of the department of labor regulation promulgated its rule but you are saying oh paid attention to the fact that congress did not do something with respect to amending the f m l a when it was doing things with respect t mix more of instruction and so when they didn't do that a couple years later in the f m l a it was because they didn't mean for it to be in there they knew how to put it in but they didn't mean for it to be and there words and a statement if i recall correctly the truth to the effect or were explicitly what can you do joe given the setting we're talking about isn't that a pretty  a question of relevancy here is there so isn't that a pretty powerful potentially powerful piece of evidence that could have changed the game respect for your honor it is not and it is not because as you pointed a manager is discussing this treatment help with him so that's the backdrop against which the court decided not to make the testimony of someone who was not in the conversation never stopped walking and could not testify as to exactly how much of the conversation he had observed and i think it's also important to remember that excluding this evidence did not prevent mr eden from introducing evidence of the conversation for either of its participants if the conversation taking place but he chose not to do so was never given the opportunity to testify to it by mr souness and any of the other counsel from history so excluding that testimony was proper particularly given the high standard of a view that this court must apply that decision as you pointed probative value of the testimony against its prejudicial impact this court in coleman the home depot specifically found that evidence had room value but it was explicitly contradicted by earlier testimony and this testimony the propose snipes and you have a no of instruction because they only presented a pretext case that was it from start to finish what's the response so there's two responses first of all the law has always been that the plaintiff doesn't need to make the election showing that that there is a motive or a but for motive the idea of pretext versus direct evidence are just two methods of showing that  motivated by an employer in whole or in part why does he answer here that instructions to a jury or the means by which trial courts present the jury with the applicable legal rules they are to apply and to hope a jury and how they're going to go about applying those rules and this instructions are given at the end as you said a little bit ago of the production of all the evidence at that point the evidence in this case not merely your evidence but the entire record was a record from which a camera you present throughout that this was pretext start to finish the defendant says it's nothing pretext about this this is a case of a man who simply was not conducting himself appropriately with respect to attendance and otherwise that it's actually a little different and that what they argued was she was made up because trial record before a jury from which they could have decided there are a number of things going on that that's exactly right and i think ed just to bring this point home you know judge easterbrook after we brief  subjected to different legal standards all evidence belongs in a single pile and must be evaluated as a whole and i think he's saying exactly what you're saying judge smith is you take all that evidence a whole and at the end of the day the to say and do you believe that that the family and met its burden are proof that that they would have taken the same action in any event that's what the mix motive is all about the evidence certainly as a whole in this trial present that