[00:00:01] Speaker 03:
before the appellant should leave off.

[00:00:07] Speaker 00:
Good morning, Your Honors.

[00:00:08] Speaker 00:
May it please the Court, John Landry on behalf of Appellant B of I, Federal Bank.

[00:00:13] Speaker 00:
I'll reserve five minutes for rebuttal.

[00:00:16] Speaker 00:
Given the fullness of the party's briefing, I would like to focus on three issues.

[00:00:21] Speaker 00:
First,

[00:00:22] Speaker 00:
the undisputed evidence that supported the bank's same action defense, second, the absence of emotional distress evidence traceable to alleged retaliation during the relevant period when the plaintiff was a bank employee, and finally, the jury's excessive damages award.

[00:00:44] Speaker 00:
At trial, the bank's same action defense was based on a simple premise.

[00:00:50] Speaker 00:
plaintiff never returned to work at the bank after his medical leave expired.

[00:00:57] Speaker 00:
He just never came back.

[00:00:59] Speaker 00:
The bank's absenteeism policy provided that if an employee fails to report to work or to call in for three consecutive calendar days, he will be considered to have abandoned his job and will automatically be terminated.

[00:01:19] Speaker 01:
Council, wasn't there evidence in front of the jury that there were other employees returning from medical leave who did things similar to the plaintiff who weren't terminated?

[00:01:35] Speaker 01:
No, there was not, Your Honor.

[00:01:37] Speaker 01:
No evidence that Earhart was treated differently from other attorneys, I mean, other employees returning from medical leave?

[00:01:46] Speaker 00:
There was evidence that

[00:01:49] Speaker 00:
reminder notice or a reaching out to coordinate the return for medical leave didn't occur in the plaintiff's case.

[00:01:57] Speaker 01:
So that is correct.

[00:01:59] Speaker 01:
So that didn't happen, but there was evidence that that did happen with other employees.

[00:02:05] Speaker 00:
There was evidence that that was considered to be the normal process.

[00:02:09] Speaker 00:
I don't know if there was evidence that it happened with others, but there was testimony that the leave coordinator, the medical leave coordinator, had a process to do that.

[00:02:20] Speaker 01:
Given the evidence, which in the light most favorable to the plaintiff, demonstrated that there was significant unhappiness in some quarters at the bank with what the plaintiff had done,

[00:02:38] Speaker 01:
Why wouldn't the evidence of some different treatment allow a jury to reject as they did this defense?

[00:02:51] Speaker 00:
Well, if there was some unhappiness, if the environment was unfriendly, if there was hostility towards him, that would be very relevant to showing that the protected activity was a contributing factor to the termination.

[00:03:06] Speaker 00:
But here, we're talking about

[00:03:08] Speaker 00:
causation element, which is adjudicated independently of that.

[00:03:14] Speaker 00:
The question that is relevant is, would the employer retain an otherwise identical employee who had not engaged in the protected activity?

[00:03:26] Speaker 00:
And our argument here today is that that test, when applied by its plain terms, required

[00:03:35] Speaker 00:
that the jury find that the same action test was met.

[00:03:42] Speaker 00:
And so I can continue to answer the question.

[00:03:45] Speaker 00:
If you're looking for, well, wasn't there some causal impact in the failure to reach out and remind him?

[00:03:51] Speaker 00:
Didn't that affect whether he appeared for work or not?

[00:03:56] Speaker 00:
That's a causation question.

[00:03:58] Speaker 00:
That answer was clear.

[00:04:00] Speaker 00:
It did not.

[00:04:02] Speaker 00:
It did not account for his failure to report the first day he was supposed to be back, the second day, or the third day.

[00:04:09] Speaker 00:
He never came back.

[00:04:11] Speaker 01:
Couldn't the jury have found, based on the evidence here, that notwithstanding the fact that this was the policy, what the bank did where somebody had been out on medical leave was do everything that they could to make sure that the people were over their medical leave,

[00:04:29] Speaker 01:
got back, were integrated to make sure they weren't having continuing problems, etc.

[00:04:35] Speaker 01:
So to do everything or to act reasonably to get them back into the workforce and couldn't the jury have looked at that and said that wasn't what happened here.

[00:04:46] Speaker 01:
This was a guy who was uncovering snakes under rocks and we want him out and we wouldn't have done it to people who weren't uncovering snakes under rocks.

[00:04:56] Speaker 00:
I believe, Your Honor, they could conclude that we want him out.

[00:04:59] Speaker 00:
They could conclude that there was animosity towards him, animus.

[00:05:04] Speaker 00:
But that is a separate inquiry from the same action defense question.

[00:05:08] Speaker 00:
And it didn't explain why he never came back.

[00:05:12] Speaker 00:
And that was what the defense rested on, which was whether or not he had notice, he never returned.

[00:05:22] Speaker 00:
The absence of notice did not explain his failure to not come back.

[00:05:28] Speaker 00:
And it's 16 consecutive business days elapsed before the formal termination notice was delivered to him.

[00:05:41] Speaker 00:
the jury got to hear that evidence and understand that there was no explanation for his failure to return other than abandonment of the job.

[00:05:53] Speaker 00:
The evidence also showed that he

[00:05:56] Speaker 00:
knew that his medical leave was expiring, that he knew he needed to get an extension of medical leave certification in order to extend it.

[00:06:06] Speaker 00:
He never did that.

[00:06:08] Speaker 00:
He knew he needed to return, and he never returned.

[00:06:12] Speaker 00:
So based on that evidence, which was, those are pretty fairly extreme facts here.

[00:06:18] Speaker 00:
about a person just walking away and not coming back.

[00:06:21] Speaker 00:
Now, he might have had reasons to not come back.

[00:06:24] Speaker 00:
He might have thought that the environment was unfriendly towards him.

[00:06:27] Speaker 00:
But he never advanced that theory of the case.

[00:06:29] Speaker 00:
He never said that he was constructively discharged and felt too uncomfortable to return.

[00:06:36] Speaker 00:
That was clearly not in this case.

[00:06:38] Speaker 00:
So what we were facing was job abandonment, and that was the independent ground on which he was terminated.

[00:06:45] Speaker 00:
And the bank, there was clear and convincing evidence.

[00:06:49] Speaker 00:
In fact, it was more, it was highly probable, highly probable that the bank

[00:06:55] Speaker 00:
would have not retained an otherwise identical employee who had not engaged in protected activity.

[00:07:03] Speaker 04:
Am I right that the bank did not have evidence of any such other case, though?

[00:07:07] Speaker 04:
Like, the bank didn't say, here are the five other employees we fired when they didn't come back to work.

[00:07:12] Speaker 00:
That's correct, Your Honor.

[00:07:13] Speaker 00:
But I would not suppose that that evidence existed.

[00:07:18] Speaker 00:
This is fairly unusual for someone to not

[00:07:23] Speaker 00:
report to work for three consecutive calendar days and not call in, not call in at all.

[00:07:30] Speaker 00:
You wouldn't expect the history of that at the bank.

[00:07:32] Speaker 00:
Perhaps people want to work at the bank.

[00:07:34] Speaker 00:
They call in.

[00:07:35] Speaker 00:
The ease with which people can call in and report that they're going to be absent would not allow a past history to develop, perhaps.

[00:07:45] Speaker 00:
So I can't speak to that necessarily, but I would not assume that such history exists.

[00:07:55] Speaker 03:
Counsel, could you address the significance of the Sarbanes-Oxley Act's anti-retaliation provision?

[00:08:09] Speaker 00:
Yes, I can, Your Honor.

[00:08:10] Speaker 00:
The Sarbanes-Oxley Act's anti-retaliation provision allows the plaintiff to establish a prima facie case

[00:08:22] Speaker 00:
And so when you get to the prima facie stage, which we're not contesting, the plaintiff has already established that the bank does not want him back, that there is animus, perhaps, towards him, that his protected activity contributed to his termination on a prima facie level.

[00:08:41] Speaker 00:
But it's the second step.

[00:08:43] Speaker 00:
that allows the defendant to overcome that.

[00:08:46] Speaker 00:
And the policy evidence, the evidence that he was out for 16 consecutive days unexplained, those are extreme facts, and the evidence that he was fully aware of what was going on.

[00:09:01] Speaker 00:
It did not need a reminder, did not need anyone reaching out to him.

[00:09:06] Speaker 00:
established the defense.

[00:09:08] Speaker 00:
In other words, it overcame the prima facie case.

[00:09:12] Speaker 00:
And it was exactly, precisely the type of evidence that Congress envisioned when it adopted a burden shifting framework that would have two steps, just like this one had.

[00:09:27] Speaker 01:
Council, is it your view that the degree

[00:09:33] Speaker 01:
of the the alleged animus is irrelevant in the calculus or that that is something the jury can consider in deciding whether your client would have done the same thing that is

[00:09:47] Speaker 01:
one isolated incident of animus that could get you to your prima facie case is the same as 10 incidents of animus.

[00:10:02] Speaker 01:
Is that something the jury can consider in deciding whether your client met its burden of showing by clear and convincing evidence that it would have fired him no matter what?

[00:10:10] Speaker 00:
No, it wasn't the degree of animus or the number of incidents or any of the quality or the quantity

[00:10:17] Speaker 00:
of evidence that established the element that the protected activity was a contributing factor.

[00:10:25] Speaker 00:
That went to the element of intent.

[00:10:27] Speaker 00:
What was the open issue that remains even with that evidence is ultimately the causation test that Congress crafted.

[00:10:35] Speaker 00:
And your honor, that test is a hypothetical.

[00:10:39] Speaker 01:
So the strength of the prima facie case is irrelevant?

[00:10:45] Speaker 00:
The prima facie case is the first step.

[00:10:47] Speaker 01:
No, I understand.

[00:10:47] Speaker 01:
But it's not relevant.

[00:10:49] Speaker 00:
I am answering your question.

[00:10:50] Speaker 00:
It's not relevant.

[00:10:51] Speaker 00:
Yes.

[00:10:52] Speaker 00:
It's not relevant.

[00:10:54] Speaker 00:
Correct.

[00:10:56] Speaker 00:
And so unless there are other questions, I'd like to go on to the second point, which was the insufficiency of the evidence supporting damages for the retaliation.

[00:11:12] Speaker 00:
There was a lack of emotional damages evidence in this case.

[00:11:17] Speaker 00:
If you look, the sum total of plaintiff's emotional distress testimony is set forth on just a few pages of the trial transcript.

[00:11:24] Speaker 00:
Now, plaintiff says,

[00:11:26] Speaker 00:
He had severe anxiety, he had sleepless nights, he had difficulty breathing in episodes of where he threw up, but you would search in vain for any place in the record where he actually links this anxiety and these symptoms to an actual retaliatory act during the relevant employment period.

[00:11:48] Speaker 00:
You would have expected him, rather, to have immediately linked his anxiety to his June 9th termination

[00:11:56] Speaker 00:
But remarkably and surprisingly, he didn't do it.

[00:12:00] Speaker 00:
Instead, he identified a source that was not related to the period of his employment.

[00:12:06] Speaker 00:
What he did was, he pointed specifically to the place and time when his anxiety began.

[00:12:15] Speaker 00:
He identified an origination point for it that was five months after his employment ended.

[00:12:22] Speaker 00:
It was October 2015, and it was during an investor

[00:12:26] Speaker 00:
call that the CEO of the bank was conducting.

[00:12:30] Speaker 00:
And there were certain statements that were made on that call that he testified caused him to fear that the bank would engage in a post-employment adverse acts against himself and his loved ones.

[00:12:47] Speaker 00:
So he

[00:12:49] Speaker 00:
affirmatively identified an origin for his emotional distress that was not related to retaliation.

[00:12:57] Speaker 00:
based on that origin and based on that testimony, there was just not sufficient proof that tied any anxiety that he testified to or that others testified that they observed to the retaliation.

[00:13:12] Speaker 00:
This was important because it speaks to the excessive nature of the award.

[00:13:18] Speaker 00:
Even if we were to assume that there was some anxiety and symptoms that were traceable and were connected,

[00:13:26] Speaker 00:
to actionable retaliation, that traceable balance would be de minimis in light of Mr. Earhart's testimony here, because he said it began in 2015 with this conference call.

[00:13:43] Speaker 00:
Then when the bank sued his mother and sued his girlfriend, it accelerated and it spiraled.

[00:13:52] Speaker 01:
Let me direct you to the mom's testimony.

[00:13:55] Speaker 01:
And I'm looking, I think, at ER 2000.

[00:13:59] Speaker 01:
Mom testified, he's not the same.

[00:14:02] Speaker 01:
I don't think he'll ever be the same.

[00:14:05] Speaker 01:
He doesn't carry the same confidence.

[00:14:08] Speaker 01:
He's very timid.

[00:14:10] Speaker 01:
It's just something a mother knows about her child.

[00:14:13] Speaker 01:
And then followed by

[00:14:14] Speaker 01:
Did these differences start when he lost his job?

[00:14:21] Speaker 01:
And the answer was you objected, counsel objected, but the district court overruled the objection.

[00:14:28] Speaker 01:
And the answer was yes.

[00:14:30] Speaker 01:
So doesn't that tie these to the timeframe you're saying his testimony may not have?

[00:14:38] Speaker 01:
Does, if mom is saying these started right when he lost his job, isn't that at least some evidence tying it to the time frame?

[00:14:48] Speaker 00:
Your honor, it's not evidence of the anxiety and the symptoms that he testified to.

[00:14:56] Speaker 00:
If you look at what the mother is saying, she's saying she noticed that he was less confident and timid.

[00:15:05] Speaker 00:
Now, she did state, as you stated, that it began with the employment, but Mr. Earhart has to be the expert of his own anxiety and his own symptoms.

[00:15:22] Speaker 00:
And his testimony was absolutely clear that it did not begin at the end of his employment.

[00:15:30] Speaker 00:
It began in October of 2015.

[00:15:32] Speaker 00:
The mother is observing these traits, which I would characterize as quite different than emotional distress, suffered by Mr. Earhart in the sense that he is less confident and timid.

[00:15:50] Speaker 00:
But even if there was some evidence, even if that's considered to be some evidence, Your Honor, what it shows is how thin that evidence is.

[00:16:00] Speaker 00:
We have a million dollar jury award that rests on it.

[00:16:05] Speaker 00:
And the case of Belle V Williams has stated that exceptional awards, which is what this one million dollar award is, requires very detailed testimony.

[00:16:19] Speaker 00:
that we don't have or other supporting documentation, which we don't have here.

[00:16:25] Speaker 00:
The evidence of his symptoms and his anxiety was rethin.

[00:16:31] Speaker 00:
He never identified the severity of his breathing difficulties.

[00:16:35] Speaker 00:
He never testified whether he had four instances of throwing up or 40.

[00:16:42] Speaker 00:
There was no indication of how many sleepless nights occurred.

[00:16:47] Speaker 00:
He testified

[00:16:49] Speaker 00:
that he found employment three weeks after the June 9th termination.

[00:16:55] Speaker 00:
There was no evidence that it interfered with any part of his life in pursuing other opportunities.

[00:17:01] Speaker 00:
He didn't obtain any medical treatment for this.

[00:17:04] Speaker 00:
There's no evidence that he went and received psychological counseling for this.

[00:17:08] Speaker 00:
He stipulated that it was garden variety emotional distress.

[00:17:12] Speaker 00:
And the comparative cases we pointed to are cases in which courts have admitted large damages award tremendously for garden variety emotional distress.

[00:17:26] Speaker 01:
We submit- Couldn't there counsel if hypothetically?

[00:17:29] Speaker 01:
Uh, we were to somehow agree with you.

[00:17:32] Speaker 01:
Are you suggesting, uh, as you sit here today, new damage trial remitted or, uh, what are you suggesting?

[00:17:41] Speaker 00:
I'm suggesting, your honor, that, um, uh, remitted or, um, uh, that, uh,

[00:17:49] Speaker 00:
the district court, that the judgment be reversed, that the district court offer the plaintiff a choice between a new trial or an acceptance of a remittitor at an amount that is supported by the evidence.

[00:18:05] Speaker 00:
The million dollars was not.

[00:18:08] Speaker 01:
We have the discretion if we were to hypothetically agree with you.

[00:18:12] Speaker 01:
to either set our own remitted or amount or set a maximum remitted or amount.

[00:18:17] Speaker 01:
If theoretically or hypothetically we were going to do the latter considering, are you talking here just about the emotional distress?

[00:18:25] Speaker 01:
Are you talking about the defamation number two?

[00:18:28] Speaker 00:
I'm talking about the emotional distress, damages only.

[00:18:32] Speaker 01:
Okay, so if we were going to do a remittitor theoretically or hypothetically on the emotional distress, what would your number suggest be if we were going to set it or set a maximum?

[00:18:43] Speaker 00:
It would be a number less than 200,000, Your Honor.

[00:18:47] Speaker 01:
Thank you.

[00:18:49] Speaker 00:
I will reserve the rest of my time, if I may.

[00:19:00] Speaker 00:
I have very little time.

[00:19:07] Speaker 03:
Okay.

[00:19:10] Speaker 03:
So now we'll hear from Ms.

[00:19:13] Speaker 03:
Gillum for the appellee.

[00:19:17] Speaker 02:
Thank you, your honor.

[00:19:21] Speaker 02:
May it please the court.

[00:19:23] Speaker 02:
We are here today to defend the verdict that a San Diego federal jury awarded Mr. Earhart on the very verdict form that the appellant fought so hard for.

[00:19:34] Speaker 02:
It was one that listed several bases or predicates for each cause of action.

[00:19:40] Speaker 02:
That document is at 15 ER 2968.

[00:19:43] Speaker 02:
It is a verdict form that proves the jury understood their solemn duty and they performed it well.

[00:19:50] Speaker 02:
By choosing two predicates for the SOX claims, Arvains-Oxley, out of three on the forum.

[00:19:56] Speaker 02:
By choosing a single basis for defamation out of four possibilities on the verdict forum.

[00:20:02] Speaker 02:
by awarding but a fraction of the damages that Mr. Earhart sought.

[00:20:07] Speaker 02:
And on that same verdict form that the defense fought for, the jury rejected the same decision defense every single time for each claim against which it was possible.

[00:20:17] Speaker 02:
They rejected the substantially true defense to defamation.

[00:20:21] Speaker 02:
They rejected the litigation-privileged defense to defamation.

[00:20:25] Speaker 02:
And they rejected every single one of the six counterclaims the bank brought against Mr. Earhart.

[00:20:32] Speaker 02:
And then, of course, we are here because the court denied their motions to overturn the verdict and get a new trial.

[00:20:39] Speaker 02:
And I'm sure you've spent plenty of time looking at Judge Cynthia Bashin's very carefully written 27-page opinion that she issued nine months after the briefing was concluded.

[00:20:50] Speaker 02:
It was a masterful summary of the evidence and the law that supported her rulings.

[00:20:56] Speaker 02:
Now, the bank acknowledges what the standard of review is here, and it's a hard one for them to overcome.

[00:21:03] Speaker 02:
Then they proceed to distort, to dispute, and to deny the inconvenient facts that supported the verdict and the ruling and lead us here today.

[00:21:13] Speaker 02:
So correctly stating the standards of review, that's about the only accurate statements that I could find in the first 15 pages of their brief.

[00:21:21] Speaker 02:
They proceeded then to repeatedly violate the standards of review.

[00:21:26] Speaker 02:
They kept describing evidence favorable to the bank that was directly contradicted by the jury's findings.

[00:21:33] Speaker 02:
and they ignored crucial evidence that supported the verdict, as the trial court also ruled.

[00:21:39] Speaker 02:
Over and over and over again, they did this throughout their briefing.

[00:21:43] Speaker 02:
Did they think that if we told them, if they told us their fantasy version of the trial enough times that someone would actually accept and believe it?

[00:21:53] Speaker 02:
Well, certainly Judge Bashin didn't.

[00:21:55] Speaker 02:
And as she said, quote, from start to finish, the jury heard conflicting narratives about what happened

[00:22:02] Speaker 02:
during Erhart's tenure at the bank, including the reasons for his termination.

[00:22:07] Speaker 02:
Indeed, a considerable portion of Erhart's case was presented through BFI's current or former employees, putting credibility determinations front and center.

[00:22:20] Speaker 02:
That's at 1ER8.

[00:22:22] Speaker 02:
And that credibility was of the very highest officers of the bank that was on trial and found wanting.

[00:22:29] Speaker 02:
By contrast, at page 21 of their brief, the bank's fantasy version says, quote, simply put, the objective and uncontroverted facts unquestionably showed that BFI would have taken the same action it took on June 9, 2015, absent the alleged protected activity.

[00:22:48] Speaker 05:
So can I ask you, do you have an explanation of why he didn't go back to work after the medical leave?

[00:22:54] Speaker 02:
Yes, he testified that he believed he was fired.

[00:22:57] Speaker 02:
By the time April came around, he thought he had already been fired because he was told on March 6 that they were delivering a letter to him to terminate him, that the bank was sending the police after him to retrieve the laptop.

[00:23:11] Speaker 02:
So he had every reason in the world to believe that he was never going to have a job back at the bank.

[00:23:15] Speaker 02:
And no one was reaching out to him to say, hey,

[00:23:18] Speaker 02:
you know, forget about what we did in March.

[00:23:20] Speaker 02:
Now we really want you to come back.

[00:23:22] Speaker 02:
That never happened.

[00:23:23] Speaker 02:
So nothing.

[00:23:24] Speaker 04:
Do you have a page for where that testimony is?

[00:23:26] Speaker 04:
Where he says that's why he didn't come back.

[00:23:29] Speaker 04:
I didn't notice that.

[00:23:30] Speaker 02:
Yes, I will.

[00:23:36] Speaker 02:
I will.

[00:23:36] Speaker 02:
Let me have a minute to get back to that and continue on some other points and I will find that.

[00:23:42] Speaker 02:
All right.

[00:23:44] Speaker 02:
So the same decision depends.

[00:23:47] Speaker 02:
This is really the heart of the case that they put on.

[00:23:51] Speaker 02:
The instruction was proper.

[00:23:52] Speaker 02:
They don't argue anything is wrong with the instruction itself.

[00:23:55] Speaker 02:
The jury was allowed to consider all evidence as we do in all termination cases, all the facts and surrounding circumstances, which includes the March 6th attempted termination, the frantic efforts to get his laptop, even involving the bank CEO.

[00:24:11] Speaker 02:
How extraordinary that the CEO of a publicly traded bank

[00:24:14] Speaker 02:
is getting involved in trying to get a laptop back from what he called a junior underperforming auditor.

[00:24:22] Speaker 02:
The OCC attorney telling Mr. Earhart at that time in March that the bank was calling the police on him, San Diego police.

[00:24:32] Speaker 02:
And Mr. Tola, the highest ranking person besides the CEO confirming at trial that it was the CEO who was behind getting the police to come after him.

[00:24:41] Speaker 02:
That same man, Tola, breaking into the cabinets on March 6th, seeing the memo that Mr. Earhart had written about the CEO's wrongdoing, directing the bank to terminate him a few hours after he didn't show up for work on a single day.

[00:24:56] Speaker 02:
And remember, the evidence showed he did call in.

[00:24:58] Speaker 02:
His original, the boss he would normally have called, of course, had walked out the day before, so he called the person that was next in charge, Sabrina, and told her he was off sick that day, and she then informed

[00:25:11] Speaker 02:
Mr. Tola, so he knew.

[00:25:12] Speaker 02:
This was not a no call, no show.

[00:25:15] Speaker 02:
He knew that he had called off sick.

[00:25:17] Speaker 02:
And remember the evidence that was then in the hands of senior bank management at the time of these two terminations.

[00:25:25] Speaker 02:
Plenty for the first one and even more for the second one.

[00:25:28] Speaker 02:
They knew of his numerous complaints of wrongdoing.

[00:25:31] Speaker 02:
He made them not only to his boss, Mr. Ball, but also to Mr. Tola.

[00:25:36] Speaker 02:
They knew, of course, that Tola had made the threat that really

[00:25:41] Speaker 02:
made him very nervous about that he would get bitten by a snake if he kept turning over rocks.

[00:25:46] Speaker 02:
That the general counsel of the bank, extraordinary, ordered Mr. Earhart to remove a finding from an audit, a finding that said the bank was violating a penal code statute.

[00:25:58] Speaker 02:
And why remove it?

[00:25:59] Speaker 02:
Because it might be discoverable in a class action suit against the bank.

[00:26:04] Speaker 02:
All this evidence is building up in Mr. Earhart's

[00:26:07] Speaker 02:
mind and as he worries about whether the things he's uncovering will ever see the light of day.

[00:26:13] Speaker 02:
So they knew he had written that memo about CEO wrongdoing because the morning of March 6 they had broken into his cabinets and found it.

[00:26:22] Speaker 02:
They knew he had gone to the OCC right after he didn't come into work to report his findings after Mr. Ball walked off the job the day before.

[00:26:32] Speaker 02:
And they knew that Mr. Earhart had filed a detailed OSHA complaint as a predicate for his SOX claim in mid-April.

[00:26:39] Speaker 02:
They were served with it and they had drafted a response.

[00:26:42] Speaker 02:
All that happened before the June 9 termination.

[00:26:45] Speaker 02:
And then, of course, we have the evidence of how very differently this termination was handled than others.

[00:26:51] Speaker 02:
The head of human resources said the bank had never, ever collected a laptop from someone who went out on medical leave.

[00:26:59] Speaker 02:
much less someone who simply called off sick for a single day.

[00:27:02] Speaker 02:
Remember, that's when they started trying to get the laptop on March 6th.

[00:27:07] Speaker 02:
He went to the doctor on March 9th.

[00:27:09] Speaker 02:
And the leave coordinator, she said, yes, the normal practice is that we will reach out to an employee on leave and remind them that they're due to return and to coordinate that return to work so that it will be seamless.

[00:27:21] Speaker 02:
None of that happened here.

[00:27:23] Speaker 02:
So in short, the same decision defense fell flat over and over.

[00:27:29] Speaker 02:
The bank simply did not follow the standard practices they claimed to have.

[00:27:34] Speaker 02:
The jury was not required to look at the June 9 termination in isolation.

[00:27:39] Speaker 02:
They were entitled to look at all the facts that led up to it.

[00:27:43] Speaker 02:
The jury didn't buy it, the trial court didn't buy it, and nor should this court.

[00:27:51] Speaker 02:
They didn't really focus much on the other lawsuits, so I guess I won't address that issue, but I do wanna talk about

[00:27:57] Speaker 02:
the emotional distress damages, because again, Counsel for the Bank has a fancy version of what happened at trial.

[00:28:06] Speaker 02:
Mr. Erhart testified.

[00:28:08] Speaker 02:
When did his anxiety begin?

[00:28:10] Speaker 02:
The morning of March 6th.

[00:28:12] Speaker 02:
That his symptoms were considerable.

[00:28:14] Speaker 04:
The answer- Where does he say that?

[00:28:17] Speaker 04:
Where is the page for that?

[00:28:19] Speaker 04:
That he had never- That his symptoms started the morning of March 6th?

[00:28:23] Speaker 04:
I mean, I know he was sick on March 6th.

[00:28:25] Speaker 02:
Yes.

[00:28:26] Speaker 04:
But with the emotional distress for being terminated, where does he say that it started?

[00:28:30] Speaker 04:
Where is that testimony?

[00:28:31] Speaker 02:
All right.

[00:28:32] Speaker 02:
I'll get these page numbers for you in just a moment.

[00:28:36] Speaker 02:
See if I have somebody watching who can help pull them up out of the 3,500 pages.

[00:28:40] Speaker 02:
We'll get them.

[00:28:41] Speaker 02:
The bank tries to argue the facts of other cases to dispute the verdict, in particular this Bell case that they only brought up in a reply brief, which is not proper.

[00:28:50] Speaker 02:
But that one is so completely

[00:28:53] Speaker 02:
unhelpful to them.

[00:28:54] Speaker 02:
It's about less than two minutes that a prisoner was being transferred from one cell to another and how the damage award was too high.

[00:29:03] Speaker 02:
In this case, for five years of symptoms, including his loss of self-confidence, his personality change, $1 million is well within the jury's discretion to award.

[00:29:18] Speaker 02:
on the defamation claim, the numerous ways the CEO called him incompetent at his job on an investor call.

[00:29:26] Speaker 02:
That investor call record is permanent.

[00:29:29] Speaker 02:
Anybody can go and look at that for as long as the SEC keeps records on a company and see what he said about Mr. Earhart over and over again, how he was inefficient, unproductive, wrong, incompetent.

[00:29:45] Speaker 02:
doing work he wasn't supposed to do, out of his depth, and so on.

[00:29:50] Speaker 02:
And the jury also saw the boss, Mr. Ball, who really knew Mr. Earhart's work product, who said it was good.

[00:29:57] Speaker 02:
His written work product among the best.

[00:29:59] Speaker 02:
He had no write-ups.

[00:30:00] Speaker 02:
He had no performance improvement plans.

[00:30:02] Speaker 02:
He had no threats of termination.

[00:30:06] Speaker 02:
And of course, he had seen, and the jury saw a lot of the emails Mr. Earhart wrote, and they could judge for themselves.

[00:30:11] Speaker 02:
He writes pretty articulate, understandable emails.

[00:30:16] Speaker 02:
The harm, again, the counsel for the bank tried to suggest that the harm to him that he was complaining about didn't come until long after the termination.

[00:30:27] Speaker 02:
That simply was not true.

[00:30:28] Speaker 02:
He had reputational harm.

[00:30:30] Speaker 02:
I guess they're not really challenging the 500,000 for that, which they had raised in their brief, so I won't address that one either.

[00:30:37] Speaker 02:
But I could summarize this before I get to those page numbers for you.

[00:30:42] Speaker 02:
As what Judge Bashan said, I called it a fantasy version of the trial, she said it a little more politely, quote, Ultimately, B of I's motion, quote, rests not on a lack of substantial evidence, but on its own interpretation of that evidence.

[00:30:58] Speaker 02:
And now, if you will allow me a minute to pull up those pages.

[00:31:02] Speaker 03:
Council.

[00:31:03] Speaker 03:
Yes.

[00:31:04] Speaker 03:
Before you pull out specific pages, I'd like you to address the remittitor argument that was made by Bell.

[00:31:17] Speaker 02:
All right.

[00:31:17] Speaker 02:
Obviously, I don't think there should be any remittitor by this court because his emotional distress was, in fact, something that began while he worked there as he testified.

[00:31:28] Speaker 02:
and as his mother supported.

[00:31:30] Speaker 02:
They're trying to tie it to the defamation that occurred months later after this lawsuit was filed.

[00:31:37] Speaker 02:
But that was another evidence of harm that the jury gave an award for.

[00:31:41] Speaker 02:
But the $1 million in emotional distress, I think, is fully backed by the record.

[00:31:45] Speaker 02:
And I would strongly resist any temptation to counteract what the jury saw, what the judge saw.

[00:31:51] Speaker 02:
This case went on for four weeks, and people saw Mr. Earhart every single day.

[00:31:56] Speaker 02:
and they got to judge, as Judge Bashant did, that that $1 million number was appropriate and well supported by the evidence.

[00:32:07] Speaker 03:
Thank you, counsel.

[00:32:08] Speaker 02:
Thank you.

[00:32:08] Speaker 02:
Now, if you'll give me a minute.

[00:32:10] Speaker 02:
Let me see here.

[00:32:10] Speaker 03:
All right.

[00:32:11] Speaker 03:
All right.

[00:32:19] Speaker 02:
I was hoping somebody was watching from my office who would have

[00:32:21] Speaker 02:
supplied me those page numbers.

[00:32:23] Speaker 01:
Well, counsel, I had looked through the pages that you cite at page nine, the bottom of your brief.

[00:32:34] Speaker 01:
And pretty much the only thing that I found was at ER 905 where your client testified

[00:32:47] Speaker 01:
quote, I also thought I had been fired on March 6th.

[00:32:52] Speaker 01:
I don't see anything in the pages that are cited at the bottom of page nine that directly goes to your client believing prior to

[00:33:05] Speaker 01:
as a reason he didn't call in or anything, that he believed he had been fired.

[00:33:10] Speaker 01:
But I mean, my looking may not have been complete.

[00:33:14] Speaker 01:
Is this the primary thing on which you rely, or do you have a recollection even without a page number?

[00:33:19] Speaker 02:
Without a page number?

[00:33:22] Speaker 01:
No, please go ahead.

[00:33:24] Speaker 02:
Yes, he was being asked on the stand about April when he filed the OSHA complaint.

[00:33:30] Speaker 02:
And he was asked about

[00:33:33] Speaker 02:
his status at the time, and he said he believed he had been terminated.

[00:33:37] Speaker 01:
Okay, I'll look for that too.

[00:33:38] Speaker 01:
Thank you.

[00:33:40] Speaker 03:
Council, let me suggest that you can submit to the court clerk the page sites you're referencing.

[00:33:51] Speaker 02:
I really appreciate that.

[00:33:52] Speaker 02:
It's very hard to do it while I'm here in this courtroom, virtually or otherwise.

[00:33:56] Speaker 03:
Thank you.

[00:33:59] Speaker 03:
not make a final decision for a while.

[00:34:04] Speaker 03:
Can you give an estimate as to about approximately when you'd have those by?

[00:34:14] Speaker 02:
By tomorrow.

[00:34:16] Speaker 03:
Okay.

[00:34:19] Speaker 03:
Okay, thank you.

[00:34:20] Speaker 02:
Thank you.

[00:34:20] Speaker 02:
I see I have more time left, but unless you have questions, I'll submit.

[00:34:26] Speaker 03:
Well, I don't have questions, but Judge Sweetland or Judge Bennett may have questions.

[00:34:36] Speaker 01:
Thank you for asking, Judge Gould.

[00:34:39] Speaker 03:
Okay.

[00:34:44] Speaker 03:
Now, we have some time for Mr. Landry to make a rebuttal argument.

[00:34:54] Speaker 00:
Thank you, Your Honor.

[00:34:56] Speaker 00:
So an employee who believes he's been terminated does not apply for medical leave and extend that medical leave.

[00:35:04] Speaker 00:
And I don't believe you'll find the testimony that says that he believed he was terminated at the time when he was supposed to return to work.

[00:35:13] Speaker 00:
That's the first thing.

[00:35:14] Speaker 00:
The second thing, there was a reference to the district court's ruling based on credibility determinations.

[00:35:21] Speaker 00:
The same action defense that we're relying on is not based on any testimony.

[00:35:26] Speaker 00:
There are no credibility determinations at issue there.

[00:35:29] Speaker 00:
So it was actually surprising to see the district court say that.

[00:35:33] Speaker 00:
And I think that shows that there was a conflation of the two steps of the burden shifting framework in that instance.

[00:35:44] Speaker 00:
In addition, going to the issue of the lack of emotional distress evidence, to the extent that there's any testimony that the plaintiff had any anxiety the morning of March 6, 2015, he did not know at that time that there was going to be an attempt to terminate him.

[00:36:06] Speaker 00:
So there's no connection between any anxiety then and any retaliatory act.

[00:36:12] Speaker 00:
And that's consistent with our position that there was insufficient evidence on that point.

[00:36:17] Speaker 00:
Thank you, Your Honors.

[00:36:20] Speaker 03:
Okay, this is Gatesville.

[00:36:22] Speaker 03:
Now be submitted.

[00:36:25] Speaker 03:
And the

[00:36:26] Speaker 03:
Parties will hear from us in due course.

[00:36:30] Speaker 03:
I think the court will now take a brief recess before returning for the last argument.

[00:36:43] Speaker 05:
This court stands in recess.