[00:00:00] Speaker 06: Good afternoon. [00:00:01] Speaker 06: It's my pleasure to welcome you to the Browning Courthouse here in San Francisco. [00:00:06] Speaker 06: This is the time set for oral argument for rehearing en banc in the case of Paul Parker versus BNSF Railway Company. [00:00:16] Speaker 06: Council is ready to proceed. [00:00:18] Speaker 06: You may come forward. [00:00:28] Speaker 01: May it please the court? [00:00:30] Speaker 01: My name is Bill Youngbauer. [00:00:31] Speaker 01: I represent Mr. Parker, the personal representative of Mr. Rookert, who is the deceased conductor, who is a subject matter of this case. [00:00:44] Speaker 01: I would request that I be allowed to reserve 10 minutes for rebuttal, please. [00:00:51] Speaker 01: Everyone agrees in this case that 42121B2B [00:01:00] Speaker 01: Roman numeral four is the governs the affirmative defense proof that a defendant must prove with clear and convincing evidence in order to succeed once the plaintiff has proved its substantive case. [00:01:21] Speaker 01: The problem in this case is that the district court did not follow [00:01:29] Speaker 01: The 42121B2B, a Roman numeral four. [00:01:35] Speaker 01: If we look at the panel's decision at page 701, the court outlines exactly what the problem is here. [00:01:48] Speaker 01: The court says the proper inquiry, however, is not whether the protected activity contributed very little to the firing. [00:01:59] Speaker 01: The proper inquiry is whether BNSF would have fired Rooker regardless of whether he had conducted an air brake test. [00:02:09] Speaker 01: That is the issue. [00:02:12] Speaker 01: So as the court goes on further at the bottom of the page, it says because we have not had much occasion to interpret what clear and convincing evidence an employer would need to provide to meet its affirmative defense burden, [00:02:29] Speaker 01: under the FRSA, we look to other sources. [00:02:34] Speaker 01: And in doing so, the panel does come up with a number of factors [00:02:41] Speaker 01: that have been recognized not only by courts, but even by OSHA. [00:02:47] Speaker 07: And the... Council, what is our standard of review of the district court's factual finding that absent the air test, BNSF would still have fired Mr. Rookard? [00:03:00] Speaker 01: I believe it's de novo because that is a mixed question of law and fact. [00:03:06] Speaker 01: If we look at the analysis that the court did [00:03:10] Speaker 01: The court correctly cites the 42121B2B Roman numeral 4, but then it doesn't go on to prove it. [00:03:22] Speaker 01: And so when the court says, in fact, if we go to the, if we go to 1ER 19 and 20, you will see exactly how the court describes [00:03:39] Speaker 01: what it did on one ER 20, the first line one, the court says he was fired for gross dishonesty. [00:03:50] Speaker 01: That's not accurate. [00:03:52] Speaker 07: And in subordination. [00:03:53] Speaker 01: And in subordination. [00:03:54] Speaker 01: That is not accurate. [00:03:56] Speaker 01: And in fact, Your Honor, even if we were to take the clear error test, if you look at the evidence, the undisputed evidence in the record, it shows [00:04:09] Speaker 01: That if we look at the dismissal letter, which is at 898, 6ER 898, you will see that Mr. Rookard was not fired for either insubordination or for gross dishonesty. [00:04:36] Speaker 01: And the court made findings to that effect. [00:04:41] Speaker 01: Now if you look at that, I don't know if you can pull that up on your screens, but it cites as a result of the investigation. [00:04:48] Speaker 01: And it goes on to say you're dismissed immediately for your failure to work efficiently during your hour of duty, dishonesty when reporting off duty time, failure to provide a signed FRA tie-up time slip, and failure to comply with instructions at 19.50 and another time. [00:05:07] Speaker 01: It does not ever use the term insubordination. [00:05:12] Speaker 01: It does not ever use the term gross dishonesty. [00:05:16] Speaker 01: And I would ask the court to look at the 10th Circuit case of Fresquez versus BNSF, because they dealt with the exact same terms. [00:05:26] Speaker 01: What they said there, the court, in doing its analysis, said, oh, BNSF sometimes charges employees with failure to comply with instructions, which is what they did here to Mr. Rookert. [00:05:40] Speaker 01: That's what they charged them with in the charging letter, and that's what they found [00:05:44] Speaker 01: in dismissing them. [00:05:46] Speaker 01: That's a business record. [00:05:47] Speaker 01: Those are admissions. [00:05:48] Speaker 01: Those are not subject to the court interpreting the demeanor of a witness. [00:05:56] Speaker 01: What happened is they changed. [00:06:00] Speaker 01: These are shifting explanations that were done long after. [00:06:06] Speaker 01: the original firing long after the first trial. [00:06:11] Speaker 01: So they come to the second trial and they do the shifting explanation, and they say, oh, we're going to call this, we're going to call it gross dishonesty, and we're going to call it insubordination. [00:06:24] Speaker 01: If you look at the Frescas case, it also says, [00:06:27] Speaker 01: You've got to define what insubordination is. [00:06:31] Speaker 01: Think about it. [00:06:33] Speaker 01: If you look at in the PEPA policy, which is BNSF's supposed, it's their policy for progressive discipline is what they call it. [00:06:43] Speaker 01: This isn't progressive discipline. [00:06:46] Speaker 01: The guy goes to lunch and they fire him. [00:06:50] Speaker 00: Look at the other. [00:06:52] Speaker 00: Council, I apologize for interrupting you. [00:06:54] Speaker 00: When you said that the guy goes to lunch and they fire him, wasn't it more than that, though? [00:06:57] Speaker 00: It wasn't that he just went to lunch, but didn't he, like, put on his time sheet that he hadn't gone to lunch, he got paid, and he was actually paid, correct? [00:07:07] Speaker 01: Not for that time. [00:07:10] Speaker 01: And that is a huge point, Your Honor, and it's in the record. [00:07:13] Speaker 01: As it turns out, employees such as Mr. Rooker [00:07:17] Speaker 01: When they go to work, they get paid for eight hours, whether they work eight hours or not. [00:07:22] Speaker 01: He was about five and a half hours into his trip. [00:07:25] Speaker 01: So he gets called back to get yelled at by his boss. [00:07:29] Speaker 01: And the boss says, you shouldn't have done this air test, so tie up. [00:07:36] Speaker 01: And then the question is, Mr. Gordon says he told all three employees to tie up and go home at 19.50. [00:07:43] Speaker 01: And that will become something. [00:07:44] Speaker 01: But as far as getting paid, no, they don't get paid for that. [00:07:47] Speaker 01: There's no money made. [00:07:48] Speaker 01: Also, I would point out to the court that at 6ER 982 is the citation [00:08:03] Speaker 01: to the rule for BNSF that tells employees, if you're going to stick around and eat lunch, you've got to reflect on your time card the time that you were eating lunch. [00:08:14] Speaker 01: Here's a guy completing with that. [00:08:16] Speaker 01: He does all that, and then they pull them, and then he'd come up with these pretext, and that's all it is, pretext answers to say we're going to fire them. [00:08:27] Speaker 01: If you look at the key items here, [00:08:31] Speaker 01: You know that the meals I think we just talked about the dismissal letter, which is at 898. [00:08:37] Speaker 01: They didn't fire them for insubordination and gross dishonesty. [00:08:42] Speaker 01: And you know why that's important? [00:08:45] Speaker 01: Because in the PEPA policy, this progressive policy, part C, page C, which of the appendix says, single event. [00:08:57] Speaker 01: Terminations may and that's a very important word by the way may not shall not will You may terminate someone for these which means when the court says all The district court says mr. Rooker was fired pursuant to the PEPA policy the PEPA policy doesn't mandate termination and [00:09:21] Speaker 01: The PEPA policy language itself, if you look at it, it doesn't prove anything other than they could do something to him. [00:09:28] Speaker 02: Mr. Youngbar, have we ever held that the correct standard of review for this kind of pretext is a mixed question of fact and law? [00:09:37] Speaker 02: It seems like even the pretext that you're asserting here would also be a district court fact-finding role that is subject to clearer review. [00:09:51] Speaker 01: because 42121B2B4 sets out exactly what must be proved with clear and convincing evidence. [00:10:01] Speaker 01: There have been a number of courts. [00:10:02] Speaker 01: This court, I believe in Frost, and a number of other courts have said that you should look at different factors. [00:10:13] Speaker 01: But what would be really nice, and it's great that you have a whole panel hearing this, because not only this [00:10:20] Speaker 01: circuit but all the circuits and all the courts and even OSHA need guidance as to how to apply the affirmative defense. [00:10:30] Speaker 01: The best guidance that exists today is the OSHA manual, which was cited both by the defendant and by us, the OSHA's whistleblower manual. [00:10:44] Speaker 01: And it tells non-lawyers how to do the testing, respondents' defense, their affirmative defense. [00:10:53] Speaker 01: And it goes through all the pre-testing that they say is mandatory. [00:10:59] Speaker 01: And this court did not do any of the mandatory items that are suggested by OSHA. [00:11:05] Speaker 01: And that's at page 32 and 33 of that manual that's cited. [00:11:11] Speaker 01: And I'd ask the court to look at that and consider that when you make your decision as to what should be considered. [00:11:19] Speaker 01: One of the things, for instance, is comparators. [00:11:23] Speaker 01: What are the proofs when you think about it? [00:11:25] Speaker 01: We get down to the brass tacks here. [00:11:28] Speaker 01: If a railroad has to prove something with clear and convincing evidence, what's the proof? [00:11:34] Speaker 01: Is it just some officials coming by saying, well, we would have fired them. [00:11:40] Speaker 01: Or is it much more reliable to have comparators? [00:11:45] Speaker 01: BNSF has comparators. [00:11:47] Speaker 07: Why isn't it an appropriate comparison that the other two people involved in the air brake test were not fired and they did not do these additional rule violations that Mr. Rooker did? [00:12:01] Speaker 07: Why doesn't that allow a strong inference that this was not the cause of his firing? [00:12:10] Speaker 01: Judge Graber, the reason for that is the plain language of the statute itself. [00:12:15] Speaker 07: Now I'm asking you about the facts. [00:12:17] Speaker 07: I'm asking you about inferences from facts. [00:12:21] Speaker 07: I'm not asking you about the statute. [00:12:23] Speaker 07: You said there need to be comparators. [00:12:26] Speaker 07: Why aren't those the most important comparators? [00:12:29] Speaker 01: Because they're not comparators. [00:12:32] Speaker 07: They participated in the test, and they were not fired, and they did not violate other rules. [00:12:40] Speaker 01: But the problem with that, Your Honor, is that that question has the protected activity built into it. [00:12:50] Speaker 01: And as the district, as the panel said, we don't know whether that influenced or whether there was protection. [00:12:56] Speaker 07: But the panel's opinion has been vacated. [00:12:58] Speaker 07: Yes, it has. [00:12:59] Speaker 01: What is your argument? [00:13:02] Speaker 01: If you read the whole transcript, Mr. Jones goes downstairs for a break and tells those two guys, don't worry. [00:13:12] Speaker 01: We're going to take care of you. [00:13:14] Speaker 01: It's in the record for the testimony of Webb and Bellinger. [00:13:18] Speaker 01: There's more going on here. [00:13:19] Speaker 01: They wanted to get Rooker to set an example. [00:13:22] Speaker 01: And by the way, the key thing here, one of the things we look at bias, how come the court never dealt with [00:13:29] Speaker 01: The smoking gun. [00:13:31] Speaker 01: How often do you get a smoking gun in a case like this? [00:13:34] Speaker 01: Well, the smoking gun. [00:13:36] Speaker 05: I think I know what you're going to argue. [00:13:38] Speaker 05: I think you're going to argue that the investigator himself found said there are other crews that are doing this. [00:13:48] Speaker 05: Let's make an example of this one. [00:13:51] Speaker 05: He acknowledged, the company acknowledged that other crews were so-called slow walking. [00:13:57] Speaker 05: But what I want you to explain to me is how did this notion that Mr. Rucard opposed the changes to the schedule and the way in which the train was accommodating [00:14:16] Speaker 05: customers, how did that play into this? [00:14:19] Speaker 05: Because to me, this sounds like a retaliation case for the opposition to the changes that the railroad had instituted. [00:14:33] Speaker 05: I'm not sure that's even argued here, but how does that play into the protected activity? [00:14:40] Speaker 01: It's actually the opposite because, and the reason for it is this. [00:14:45] Speaker 01: The railroad was arguing, oh, Mr. Rookard was against, they claim, the shift in location. [00:14:53] Speaker 01: What he said is the changes aren't going to save you all the time you say. [00:14:58] Speaker 01: When he said it couldn't be done in 12 hours, he didn't say, I'm going to work slow and do it in 12 hours. [00:15:04] Speaker 01: In fact, if we look at the records, [00:15:07] Speaker 01: Mr. Rookard got his work done all those times in 12 or less hours. [00:15:13] Speaker 01: Mr. Creek, the other guy, he was working over the hours limits. [00:15:18] Speaker 01: He worked 13 hours one of those weeks. [00:15:20] Speaker 01: And they still weren't getting it done. [00:15:23] Speaker 01: And if you also look at the record, there were no complaints about Rookard or his crew and how they were doing their job, none. [00:15:30] Speaker 01: Finally, when we talk about the air test, [00:15:33] Speaker 01: and the fact that a lot of other air tests were done, the protected activity here was not air tests. [00:15:39] Speaker 01: The protected activity here was refusing to stop doing a safety air test. [00:15:45] Speaker 01: The other air tests on earlier weeks had nothing to do with that because the company didn't call them up and say, why are you doing this test? [00:15:55] Speaker 01: I don't think you need to do that test. [00:15:58] Speaker 05: The other thing I find kind of troubling this is for both sides about the district court's order is it seems contradictory to me because he makes a finding that the [00:16:11] Speaker 05: refusal to come home and not finish the air test was a part of the reason for the firing. [00:16:20] Speaker 05: And then he says he would have been fired anyway. [00:16:23] Speaker 05: And to me, that seems kind of inherently a conflict because, well, for me, it's hard to unwind [00:16:35] Speaker 05: the events of the day from each other, like the whole thing seemed to be one incident, not broken up the way it's broken up here. [00:16:45] Speaker 05: But why aren't the findings, why aren't you making the argument that the findings that the district court made are inherently contradictory? [00:16:55] Speaker 05: You can't say it's a part and then say it's not a part. [00:16:58] Speaker 01: In fact, if you look, we had two parts to our appeal. [00:17:02] Speaker 01: we gave the district court, we asked the district court to please allow us to have a hearing on amending its order and facts. [00:17:12] Speaker 01: I wanted to have a hearing with the district judge where I could go in there and go fact by fact, not everything, but all the key ones, and we were denied. [00:17:20] Speaker 01: We never got to have that. [00:17:21] Speaker 07: Counsel, why isn't the issue that Judge Wardlaw has raised inherently part of the affirmative defense? [00:17:29] Speaker 07: In other words, [00:17:30] Speaker 07: It doesn't even arise for the employer to demonstrate that they would have fired the person anyway, unless there's first a prima facie case that a protected activity was part of the mix. [00:17:44] Speaker 07: If it wasn't even part of the mix, you'd never get to the affirmative defense. [00:17:48] Speaker 07: So why isn't that just baked into the statute? [00:17:53] Speaker 01: Well it is, it is, it is, because what 42121B2B3, Roman numeral 3 says, for your substantive case you have to prove by a preponderance of the evidence that there was protected activity and that it contributed. [00:18:10] Speaker 07: Right, and that's when the affirmative defense arises. [00:18:14] Speaker 07: So that even if a person proves that it was a contributing factor, the employer has the opportunity by clear and convincing evidence to convince the finder of fact that the person would have been fired anyway [00:18:30] Speaker 07: In other words, if a person engages in protected activity and then they shoot somebody, you can still fire them for shooting somebody. [00:18:37] Speaker 01: I've got an example for you, because Judge Graber, you had an example in your other opinion. [00:18:43] Speaker 01: I was thinking about that. [00:18:44] Speaker 01: And here's how it works. [00:18:48] Speaker 01: What the 42121B2B4 says is two things that are really important. [00:18:57] Speaker 01: The key words are would. [00:19:00] Speaker 01: They have to prove it clear and convincing. [00:19:02] Speaker 01: They would have fired them, and they got to prove in the absence of protected activity. [00:19:09] Speaker 01: Absence. [00:19:10] Speaker 01: That is the key. [00:19:11] Speaker 01: So going back to one of the earlier questions. [00:19:14] Speaker 07: So if it contributed very little and somebody kills a coworker, then presumably they've proved it, right? [00:19:21] Speaker 07: It's just a matter of how convincing the evidence is. [00:19:24] Speaker 01: Let me show you how that works. [00:19:25] Speaker 01: And here's a good example. [00:19:27] Speaker 01: And yours is close. [00:19:28] Speaker 01: I could use yours. [00:19:29] Speaker 01: So let's say that Mr. Rookard out there is working and he's got a protected activity and he shoots Mr. Gordon because he ticked off at him on the job in the office. [00:19:41] Speaker 01: And you're saying, well, is this protected activity going to be a shield where the railroad can't get him? [00:19:47] Speaker 01: No. [00:19:48] Speaker 01: And the reason is because all they have to do is prove that in the absence of the protected activity, if you go on the job and shoot Mr. Gordon, we're going to fire you. [00:19:59] Speaker 01: Same thing if you go to work drunk and you run a red signal and you cause a collision and you turn in an accident report. [00:20:06] Speaker 01: The accident report does not give you protection from being fired. [00:20:11] Speaker 01: That's why the key analysis here is [00:20:15] Speaker 01: in the absence of. [00:20:18] Speaker 01: So looking at Webb and Bellinger doesn't prove anything because those cases have protected activity tied in with them. [00:20:27] Speaker 01: More importantly, the comparators that we had, that we came up with, that BNSF sends me 20,000 items. [00:20:36] Speaker 01: I got to go through them by hand because they locked them up and I couldn't do searches. [00:20:40] Speaker 01: Long story short, we found a number and the court allowed us to have 12. [00:20:45] Speaker 01: And if you were to look at some of them, and they're at 6ER887 to 9. [00:20:52] Speaker 01: You will find a couple of them there that are identical to this. [00:20:57] Speaker 01: Someone that did worse. [00:20:59] Speaker 01: Not only failed to sign a time sheet, but stole money from the railroad doing it. [00:21:06] Speaker 01: Rooker did not get any extra money. [00:21:09] Speaker 01: But this guy did, and they didn't fire him. [00:21:11] Speaker 01: How do you prove that you would have done something when you let somebody not get fired who actually took money? [00:21:18] Speaker 01: by doing it. [00:21:19] Speaker 02: But in none of those, the examples that you've given, you're lacking the fact that the employee doesn't have a claim to begin with. [00:21:28] Speaker 02: And I think as Judge Graver has suggested, we've got, it has to be a contributing factor, right? [00:21:33] Speaker 02: There has to already be a causal link between the protected activity and the adverse action. [00:21:40] Speaker 02: That's baked into the [00:21:43] Speaker 02: employees claim to begin with. [00:21:45] Speaker 02: All of these other examples are ones where the employee wouldn't have a claim with because there's no causal link at all. [00:21:50] Speaker 02: The affirmative event is premised on the idea that there's a contributing factor. [00:21:54] Speaker 01: They are separate and distinct analyses with separate and distinct burdens of proof. [00:22:01] Speaker 02: So what's an example where the adverse action, where the protected activity was a contributing factor, but was not, but where the affirmative defense would apply? [00:22:14] Speaker 01: Where they show by comparators, for instance, if he had cheated to get money, and you'll find some of them comparators in there, where somebody had actually listed, not once, but about four times, listed trying to get money, and did get money. [00:22:33] Speaker 01: Theft. [00:22:34] Speaker 01: That, to me, would be one where they could say, theft, independent, we could fire you for it, whether you've got a protected activity or not. [00:22:42] Speaker 01: It's the, it's the, the, the, you have to do the analysis of what would happen in the absence of protected activity. [00:22:51] Speaker 01: That's why comparators are so important. [00:22:53] Speaker 01: It's also a reason why and, and Judge Gray, one of your cases said you don't have to have comparators in all situations. [00:23:01] Speaker 01: I think that was Dugan. [00:23:03] Speaker 01: But that's a different case. [00:23:05] Speaker 01: And the gist is if they've got comparators, they ought to disclose them. [00:23:10] Speaker 01: If we were in a case where we had a jury and they didn't disclose them, I would ask for a failure to produce available evidence that's exclusively in your control. [00:23:20] Speaker 01: And I'd get an adverse inference. [00:23:23] Speaker 01: Because they control all the cards. [00:23:25] Speaker 01: They've got it all. [00:23:26] Speaker 01: And you know what's really terrible? [00:23:28] Speaker 01: The reason I wanted to come argue this day is I'm in the trenches all the time on this stuff. [00:23:33] Speaker 01: And when I'm trying to get discovery from district courts and I want to get comparators, they fight us to death on it. [00:23:40] Speaker 01: They say, oh, it's not relevant, blah, blah, blah. [00:23:42] Speaker 01: That's the most relevant evidence there is for their affirmative defense. [00:23:46] Speaker 01: They should be disclosing it in their initial disclosures, but they don't. [00:23:50] Speaker 05: So did they demonstrate that they actually fired anybody for inefficiency and dishonesty, anybody other than your client? [00:24:03] Speaker 01: not without other protected, not protected, not without other activities. [00:24:09] Speaker 01: The three examples they gave were all had individuals that had also violated a very important rule the company has on secrecy. [00:24:22] Speaker 01: Don't disclose confidential information, which they've fired people for also. [00:24:27] Speaker 01: So that doesn't prove anything because it's got the protected [00:24:31] Speaker 01: It's got, in the absence of protected activity, has to be one of the issues. [00:24:36] Speaker 01: But it's not a similarly situated individual. [00:24:39] Speaker 05: You don't have to show. [00:24:40] Speaker 01: I'm sorry. [00:24:41] Speaker 05: I'm excited. [00:24:43] Speaker 05: For the affirmative defense. [00:24:46] Speaker 05: Just looking at the affirmative defense without looking at the protected activity, did they come up and show they would have fired? [00:24:55] Speaker 05: They did, in fact, fire anybody else for clocking out 25 minutes before they said that on their timesheet. [00:25:07] Speaker 01: Not on its own. [00:25:08] Speaker 01: And in fact, they could have done searches. [00:25:10] Speaker 05: And whose burden is it to come forward with this evidence that they would, in fact, fire people for those offenses? [00:25:16] Speaker 05: It's what they have to do. [00:25:17] Speaker 05: Right. [00:25:18] Speaker 05: It's their burden. [00:25:19] Speaker 05: That's their burden. [00:25:20] Speaker 01: That's the burden of production. [00:25:22] Speaker 05: Right. [00:25:22] Speaker 05: Well, actually, it's the burden of proof. [00:25:24] Speaker 01: That's a subpart of it, isn't it? [00:25:26] Speaker 05: Well, yeah, that's the initial part. [00:25:29] Speaker 05: OK, you're right. [00:25:30] Speaker 05: I'm sorry. [00:25:31] Speaker 05: Did they come forward with any one of the grounds in the dismissal letter, not the made up grounds later, but the grounds in the dismissal letter? [00:25:40] Speaker 05: Did they come forward with evidence that they fired people on those grounds? [00:25:47] Speaker 01: No, not in and of itself. [00:25:49] Speaker 01: And that's my point. [00:25:50] Speaker 01: I wanted to do a computer search, which they could do to prove it, one way or the other. [00:25:55] Speaker 01: And it's not just that, Your Honor. [00:25:57] Speaker 01: When we go back to what the different items are that should be in this affirmative defense, comparators are great if you can get them, if they're similarly situated. [00:26:06] Speaker 01: If you can't get comparators, look at the policy itself. [00:26:10] Speaker 01: That's the second thing. [00:26:12] Speaker 01: Not only OSHA, but the case is safe. [00:26:14] Speaker 01: And the policy does not mandate firing someone. [00:26:18] Speaker 06: Did you want to reserve the balance of your time? [00:26:23] Speaker 01: Thank you, Your Honor. [00:26:39] Speaker 03: Good afternoon, Your Honors. [00:26:41] Speaker 03: My name is David Morell on behalf of BNSF Railway Company. [00:26:46] Speaker 03: begin where the panel dissent began. [00:26:48] Speaker 03: This is an easy appeal that warrants a short memorandum disposition affirming the district court. [00:26:56] Speaker 03: The framework for adjudicating claims under the Federal Railroad Safety Act is straightforward. [00:27:02] Speaker 03: Once the plaintiff establishes that protected activity was a contributing factor in some adverse action, he's proven his case and the burden shifts to the employer to prove that it would have taken [00:27:15] Speaker 03: the same adverse action even absent the protected activity. [00:27:19] Speaker 05: All right, so what was the evidence of that that the railroad put forward? [00:27:25] Speaker 03: Sorry, what was the? [00:27:26] Speaker 05: That it would. [00:27:27] Speaker 05: And I'm looking at the factors in the Seventh Circuit's case, Brazil, and it says how clear and convincing the independent significance of a nonprotected activity [00:27:41] Speaker 05: the evidence that proves or disproves whether the employer would have taken the same adverse action, and the facts that would change in the absence of the protected activity. [00:27:51] Speaker 05: But I'm focused on two, the evidence that proves or disproves whether the employer would have, and it's would have, not could have as a technicality, but would have, which means and has and did. [00:28:06] Speaker 05: In fact, fire people on the grounds listed in the dismissal letter. [00:28:12] Speaker 03: Right, so Your Honor, a few responses. [00:28:14] Speaker 05: What was the evidence before Judge Jones? [00:28:18] Speaker 03: So there was a lot of evidence. [00:28:19] Speaker 03: I'm happy to give you the record size. [00:28:21] Speaker 05: No, I want evidence that your client fired people on those same grounds. [00:28:26] Speaker 03: So Exhibit 637... Well, tell me in English without the numbers. [00:28:31] Speaker 05: I don't have my screen. [00:28:34] Speaker 03: Sure. [00:28:35] Speaker 03: There was evidence submitted in, again, that exhibit of three individuals who engaged in dishonesty associated with tie-up conduct. [00:28:46] Speaker 03: Those comparators did not even have the insubordination count. [00:28:49] Speaker 03: They just had dishonesty with a connection to the tie-up procedures, which is exactly one of the forms of misconduct that BNSF relied upon here. [00:29:01] Speaker 04: Those three... When did those occur? [00:29:04] Speaker 03: 2012. [00:29:06] Speaker 04: And it was after so his discharge was in 2010. [00:29:12] Speaker 03: I will note that Mr. Rooker doesn't have any problem with comparator evidence coming after later because his own comparator evidence that he submitted there was 12 individuals that [00:29:22] Speaker 03: I don't know if all of them came after, but several came many years later, so I don't think the timing is ever... Well, the question is not whether he has a problem with it. [00:29:31] Speaker 05: The question is whether this district court judge committed clear error by finding that the railroad met its burden by clearing convincing evidence. [00:29:40] Speaker 03: I agree that that is the question. [00:29:42] Speaker 03: I agree the standard of review is clear error. [00:29:45] Speaker 05: So now is post-firing Mr. Ricard evidence legally relevant? [00:29:51] Speaker 03: It is because it demonstrates, it's probative of what the company does when it's confronted with certain types of misconduct. [00:30:00] Speaker 03: That's why Mr. Rookard, when he submitted comparator evidence, identified comparators before and after. [00:30:05] Speaker 03: It's why VNSF did. [00:30:07] Speaker 03: But I would also say it wasn't just comparator evidence that BNSF submitted at trial. [00:30:13] Speaker 03: There was a whole host of testimony about why not just that he committed a rule violations. [00:30:19] Speaker 05: I just want to make sure I have that. [00:30:21] Speaker 05: So you have evidence of termination of two people. [00:30:24] Speaker 05: Three. [00:30:26] Speaker 05: Three? [00:30:26] Speaker 05: Three individuals. [00:30:27] Speaker 05: Three people for dishonesty related to the tie-in procedure. [00:30:35] Speaker 03: Yes. [00:30:36] Speaker 05: OK. [00:30:38] Speaker 03: That occurred two years later. [00:30:40] Speaker 03: Correct, 2012. [00:30:41] Speaker 03: Nothing prior? [00:30:42] Speaker 03: There was none, I don't believe there was any comparator evidence submitted before. [00:30:47] Speaker 03: And I'll also note that Mr. Youngbauer extensively cross-examined a company witness about these comparators. [00:30:54] Speaker 03: I'll note that they were from the same craft and division, which is very significant. [00:30:58] Speaker 03: Courts typically regard comparators as more probative, where it comes from the same craft, same division. [00:31:06] Speaker 03: Unlike Mr. Rooker's comparators, these are all from the same craft and division. [00:31:11] Speaker 03: and again they were related to the dishonesty and Also, no only conduct for which they were discharged in all three cases. [00:31:21] Speaker 04: That's correct your honor one instance of dishonesty with respect to a tie-up form That was their only misconduct and they were discharged. [00:31:32] Speaker 03: I believe that's correct. [00:31:34] Speaker 04: I don't clear about this What's that and the record is clear about this with all three? [00:31:39] Speaker 03: Yes, I believe it is clear. [00:31:43] Speaker 03: What I want to clarify is that they didn't have insubordination. [00:31:46] Speaker 03: So the particular, as occurred here, the dismissal letters tend to have more factual narrative, right? [00:31:53] Speaker 03: They describe it's not just a bunch of rule violations, but, you know, you did X, Y, and Z, and so there's inherently going to be [00:32:01] Speaker 03: you know, some kind of different articulation of what the factual conduct was, but the factual conduct in these three examples related to dishonesty in connection with tie-up procedures. [00:32:15] Speaker 05: Can I ask you a question as to the other two comparators, that is the people who were working with him that night? [00:32:21] Speaker 05: Just to clear up something in my mind, he was the conductor, and they were what? [00:32:28] Speaker 05: I believe the brakeman and the engineer and now do they report to him in some way or because he considered the leader of the group or the supervisor of the group He's I don't believe they report to him But he would be responsible for the mission or whatever the task was he was in charge of the so he is differently situated then them on this very same protected activity and [00:32:56] Speaker 03: Not in any relevant respect. [00:32:59] Speaker 05: He was the one who called the shots on going forward with the safety check after the person back at the home, the headquarters or whatever, told him to stop, right? [00:33:14] Speaker 03: So I don't know if the record is clear on that, but he was certainly ahead of the crew that was conducting this mission. [00:33:22] Speaker 03: But I think what's important is, [00:33:25] Speaker 03: the salient distinction here for purposes of the affirmative defense, because remember, we're not disputing the contributing factor. [00:33:32] Speaker 03: We litigated it, we lost. [00:33:34] Speaker 05: No, no, I'm talking about the comparators. [00:33:36] Speaker 03: Right, but what the company would have done in the face of non-protected misconduct, this is relevant too. [00:33:43] Speaker 03: So I promise you that if the other two individuals on the crew had not [00:33:49] Speaker 03: uh... engaged in misconduct but we're still fired. [00:33:52] Speaker 03: Mr. Jungdauer would be up here telling you that that's a highly relevant fact that undercuts our affirmative defense because the fact that two individuals gauged in the same [00:34:04] Speaker 03: protected activity, but not the misconduct and were treated differently suggest as the Fifth Circuit is held. [00:34:11] Speaker 05: They were being instructed by the conductor, so they can't be, I mean, they couldn't say we're stopping and you continue on your own. [00:34:21] Speaker 05: They were working together under his sort of leadership. [00:34:26] Speaker 05: They're kind of less culpable than he is, and that's why I don't see them as the best comparators. [00:34:34] Speaker 03: Your Honor, your points? [00:34:34] Speaker 05: I'm going to look at your evidence of the other three more carefully. [00:34:39] Speaker 06: Can I ask you a question? [00:34:40] Speaker 06: I just want to make sure I'm clear, because I thought that BNSF, the three comparators offered by BNSF, were fired for falsifying tie-up slips and insubordination. [00:34:55] Speaker 03: No, Your Honor, I can check, but I'm certain that there's no reference to insubordination. [00:35:01] Speaker 05: You can give the exhibit numbers. [00:35:06] Speaker 05: Everybody else has screens. [00:35:08] Speaker 05: I don't mean to stop you from doing that. [00:35:09] Speaker 03: It's exhibit 637. [00:35:11] Speaker 03: They were not... You have the ER site. [00:35:16] Speaker 03: So I know the testimony around it was a 6ER810 to 14. [00:35:21] Speaker 03: But one thing I do want to make clear though is comparator evidence is obviously a form of evidence that can be probative. [00:35:29] Speaker 03: But this court has already held that it's not essential in order for an employer to carry the affirmative defense. [00:35:36] Speaker 03: There's other factors that Dugan, for example, has said are relevant. [00:35:40] Speaker 03: And those are particularly, I think, robustly presented in this case. [00:35:45] Speaker 04: Councillor, part of my struggle with your showing here is that there's the record shows that the BNSF uses a progressive discipline policy. [00:35:55] Speaker 04: I can't remember which representative of the company testified that they would not have fired Mr. Rickard for inefficiency alone because he had no prior discipline for inefficiency. [00:36:07] Speaker 04: So it wouldn't have [00:36:09] Speaker 04: Comported with progressive discipline. [00:36:10] Speaker 04: They also didn't actually charge him with gross dishonesty, and they didn't actually charge him with insubordination Although there were concerns about the exchange he had with another with his co-worker in the break room They did not actually call that person to testify in his discharge hearing so they were never relied on the content or alleged content of that conversation as a grounds for discharge so what we're left with is a [00:36:37] Speaker 04: three relatively arguably offenses that would have warranted lower progressive discipline than discharge. [00:36:46] Speaker 04: And I don't see evidence in the record that this, even this combination of inefficiency and the tie-up which didn't result in any pay differential and the refusal to leave immediately versus go to the break room, [00:37:05] Speaker 04: would constitute grounds for discharge under the progressive discipline policy. [00:37:10] Speaker 03: So, Your Honor, there was a lot of testimony of that. [00:37:14] Speaker 03: Let me start where you began. [00:37:15] Speaker 03: You talked about he wasn't charged with certain conduct. [00:37:17] Speaker 03: I think this is really important to understand. [00:37:19] Speaker 03: The whole disciplinary process is governed by a CBA that between BNSF and the labor force. [00:37:30] Speaker 03: Part of that, and there's testimony on this, that they don't, you know, charging is maybe [00:37:35] Speaker 03: carries connotations of some criminal-like procedure. [00:37:38] Speaker 03: We have an indictment with US code sites. [00:37:42] Speaker 03: That's not what's going on. [00:37:43] Speaker 03: What they do in these notices is they identify a factual transaction. [00:37:48] Speaker 03: that puts the employee on notice of what will be investigated. [00:37:52] Speaker 03: Mr. Jones testified at trial that it's at the hearing itself where they identified and present testimony on which rules are implicated by the conduct and whether the conduct violates those rules. [00:38:06] Speaker 03: And so there's an issue. [00:38:08] Speaker 04: In the record, does it show that the company made a decision that that conduct equaled gross dishonesty specifically? [00:38:15] Speaker 03: So specifically I will give you So gross dishonesty the policy is at 6 er Right there was a finding at his discharge hearing that his conduct constituted Gross dishonesty whereas that sure it 9 er 1557 and 1561 [00:38:40] Speaker 03: It's Mr. Hurlbert who testified that they regarded his tie-up procedures as a form of gross dishonesty within the meaning of these policies. [00:38:49] Speaker 03: And what about the insubordination? [00:38:51] Speaker 03: Can I give one more site? [00:38:53] Speaker 03: 3ER 361 to 362. [00:38:59] Speaker 03: It was Mr. Ringstadt who also gave testimony to that effect. [00:39:02] Speaker 03: Now, insubordination. [00:39:08] Speaker 03: So at 9 ER 1562, 3 ER 362 through 63, and 4 ER 540 through 41. [00:39:27] Speaker 03: And then there's, I can give more, 4 ER 513, [00:39:32] Speaker 04: Yes. [00:39:33] Speaker 03: It's Mr. Jones. [00:39:36] Speaker 03: And then also for ER 535. [00:39:37] Speaker 03: And I don't want to suggest that that's exhaustive, but those I think are some of the clearest examples of the testimony to this effect. [00:39:52] Speaker 03: And so what you have here, and again, I think what shouldn't be lost is comparator testimony. [00:39:57] Speaker 03: This court has already said is not essential, and other courts have held that as well. [00:40:01] Speaker 03: What courts also consider, which I think is what the district court relied upon, is the strength of the evidence of the misconduct. [00:40:11] Speaker 03: What is the company's case that there was actually non-protected conduct? [00:40:16] Speaker 03: And one thing I'll note is the ultimate question, right, we agree, is reviewed for clear error of what the company would have done. [00:40:22] Speaker 03: But there's subsidiary findings that Mr. Youngbauer never challenges. [00:40:27] Speaker 03: He never says some particular finding. [00:40:29] Speaker 03: What he has argued is essentially a jury argument that the court, sitting as the fact finder in the bench trial, should have credited his version of the events. [00:40:40] Speaker 07: And this court... Well, I think that may be because he is arguing for de novo review. [00:40:44] Speaker 03: I agree, Your Honor, and there's no warrant or precedent for that. [00:40:49] Speaker 03: I think we all agree it sounds like it is a factual determination reviewed for clear error. [00:40:54] Speaker 03: And so I think what's important is Mr. Youngbauer had a four-day trial, bench trial. [00:41:00] Speaker 03: He stipulated to it. [00:41:01] Speaker 03: He had the chance to make all of the arguments to weigh the various considerations. [00:41:05] Speaker 03: You heard today his account of the story. [00:41:09] Speaker 03: The court, just your court heard the same account. [00:41:11] Speaker 03: It heard BNSF's. [00:41:13] Speaker 03: And yes, there's testimony going in both directions, right? [00:41:16] Speaker 03: So I don't think we're disputing that he has a version of Vince. [00:41:20] Speaker 03: But we have our version of Vince in the fact finder. [00:41:23] Speaker 03: who is entitled to deference in his role as the fact finder found otherwise. [00:41:28] Speaker 03: He credited testimony that the company really cared about the dishonesty. [00:41:33] Speaker 03: And the reason it cared about the dishonesty wasn't because it was some ticky-tack rule violation. [00:41:38] Speaker 03: It was because the tie-up procedures relate to the FRA hours of service obligations. [00:41:44] Speaker 03: Both that there's testimony that the company and the employee can be fined if those tie-up numbers or times are incorrect. [00:41:54] Speaker 03: And again, that is evidence that the district court had in front and was entitled to rely upon in reaching the conclusion that no, this wasn't pretext. [00:42:04] Speaker 03: This wasn't something that the company was, you know, lackadaisical about. [00:42:08] Speaker 03: They are obligated by federal law to maintain accurate records in order to ensure hours of service limitations are conformed to. [00:42:16] Speaker 03: And those are findings that the district court made. [00:42:19] Speaker 03: It wasn't that he just said, oh, tiki-taka rule violation, you know, game over. [00:42:23] Speaker 03: He specifically on, it's around I think paragraph 27 of his findings at the end, said the company really cared about this because of the exposure that, or the risk of exposure it created for both the employees and the company itself. [00:42:41] Speaker 03: And that's something, again, that Mr. Youngbauer has never said there's no evidence supporting that. [00:42:47] Speaker 03: And then similarly, on insubordination, there was evidence, Mr. Jones testified, that they really cared about the message that it sent when you have to tell an employee to leave three times before the individual complies. [00:43:01] Speaker 05: But, counsel, it doesn't matter how much they really cared. [00:43:03] Speaker 05: It's, you know, did they fire people on that basis? [00:43:08] Speaker 05: And with the demonstrating that they would have fired him solely on the basis of the dishonesty related to the tie-up. [00:43:14] Speaker 03: It is relevant to what they would have done is if you show that not only did he violate the rule. [00:43:20] Speaker 05: They've never done it and they don't have clear rules saying that that's what they do. [00:43:24] Speaker 05: How do you meet your burden with clearing convincing evidence? [00:43:30] Speaker 03: Again, Your Honor, this court has already held that you don't need comparator evidence. [00:43:34] Speaker 05: Second, we have submitted comparator evidence. [00:43:38] Speaker 05: You need to have something that substitutes for it, not just that you really, really cared. [00:43:43] Speaker 03: But Your Honor, I think it gets to the point. [00:43:45] Speaker 03: It's probative because it's one thing to say, technical rule violation, we would have fired him. [00:43:50] Speaker 03: Yes, not as convincing to fact finders. [00:43:53] Speaker 03: But what is convincing is when you explain not only that there was a violation, but why the violation mattered to the company, that is probative of its motivation and the incentive it had to take action to discipline particular conduct. [00:44:09] Speaker 03: The district court made a specific finding about that that no one has ever challenged is lacking substantial evidence. [00:44:15] Speaker 03: And there was also evidence in front of the court about why the insubordination matter. [00:44:22] Speaker 03: Now, as for the comparators, again, there's a good reason why courts don't hold that it's essential. [00:44:28] Speaker 03: And it's because what if the facts are one of a kind? [00:44:32] Speaker 03: It can't be the case that federal whistleblower law becomes a shield against disciplining novel misconduct. [00:44:40] Speaker 03: And so, again, there's always going to be some daylight between the particulars of the case before the court and comparators. [00:44:48] Speaker 03: But what matters is that at least that there's some evidence, again, that can come on all shapes and sizes and forms of what the company would have done. [00:44:59] Speaker 03: And here, there was comparator evidence. [00:45:02] Speaker 03: And the comparator evidence that BNSF submitted, [00:45:07] Speaker 03: There wasn't even an insubordination finding as a part of that discipline. [00:45:11] Speaker 03: So what you have is essentially half of the misconduct that was at issue here. [00:45:17] Speaker 03: Because again, what the district court relied on was insubordination and dishonesty. [00:45:22] Speaker 03: And in the comparator examples that, and again, 637. [00:45:26] Speaker 07: I think the district court also [00:45:28] Speaker 07: found as a fact that not all of the inefficiency that was charged related to protected conduct because only 20 to 40 minutes had been involved in the air break test whereas the inefficiency lasted for, I've forgotten the fact right now, five and a half hours. [00:45:49] Speaker 07: So that was added into the mix of the district court's findings as well. [00:45:53] Speaker 07: At least that's how I remember it. [00:45:55] Speaker 03: Yeah, you're correct, honor. [00:45:56] Speaker 03: They were on the shift for about five and a half hours. [00:46:00] Speaker 03: And there was a finding that the air test only related to about 20 to 40 minutes. [00:46:06] Speaker 03: And there was testimony. [00:46:08] Speaker 03: Mr. Jones testified that he was asked if you kept held everything constant, which is what Murray says you do. [00:46:15] Speaker 03: The Supreme Court's decision in Murray says you hold everything constant and you change one fact at a time. [00:46:19] Speaker 03: So take out the air test. [00:46:21] Speaker 03: And Mr. Jones testified that [00:46:24] Speaker 03: And he was the decision maker. [00:46:25] Speaker 03: This is at 5ER582. [00:46:28] Speaker 03: He said if you change everything, or sorry, keep everything constant except the air test, he would have taken the same action. [00:46:36] Speaker 03: And then Mr. Gordon at 5ER609 and 615 testified he wouldn't even have sought discipline for anything related to the inefficiency, the air test, had the additional conduct back at the headquarters not occurred. [00:46:53] Speaker 03: And then also, Mr. Jones at 5ER 588 testified that he didn't act because of the air test. [00:47:02] Speaker 03: And at 5ER 542, he also testified that he would not have disciplined or would not have dismissed Mr. Rookard based on the inefficiency charge alone. [00:47:13] Speaker 03: And I think what this all illustrates is that there is a lot of evidence speaking [00:47:18] Speaker 03: expressly to the ultimate question of what the company would have done absent the air test. [00:47:25] Speaker 03: And I understand that Mr. Rookard has a different take on the record, but he has never in his opening brief, his reply or his opposition to the petition for rehearing on Bonk has said this particular finding has no basis in the record. [00:47:41] Speaker 03: What he's challenged is whether what the district court's findings [00:47:46] Speaker 03: support the ultimate conclusion of what BNSF would have done absent the protected activity. [00:47:53] Speaker 03: And that is a quintessential determination for the fact finder. [00:47:57] Speaker 03: And based on a very well-trodden path of how fact finders make these determinations, there's a lot of evidence that makes this a very straightforward case. [00:48:09] Speaker 03: And again, other factors that Dugan, for example, has said are relevant is the strength of the evidence of the misconduct. [00:48:17] Speaker 03: And then also, and this is significant, is the incentive, the existence and strength of the motive to retaliate. [00:48:24] Speaker 03: And so that's another very well-established factor in the affirmative defense. [00:48:30] Speaker 03: And the district court made specific findings about the existence and strength of the motive to retaliate against the protected activity. [00:48:38] Speaker 03: And that goes to Judge Graber's point that, yeah, the air test was 20 to 40 minutes of a five and a half hour transaction that BNSF thought was too slow. [00:48:50] Speaker 03: And there's evidence that Mr. Fort, for example, testified, he said his concern was the overall pace of the work. [00:48:57] Speaker 03: And that's at 7 ER 1091, 1100, 1110. [00:49:05] Speaker 03: And Mr. Jones testified at 4 ER 506, 530 to 31, 579, that the delays in other movements was the crux of the issue, not the air test. [00:49:18] Speaker 03: And so, again, there's a lot of, a four-day trial, there's a lot of evidence there that both parties submitted, you know, it was, they joined issue, that there's evidence pointing in different directions, but that is all the fodder for a decision-maker [00:49:34] Speaker 03: And this court's role is to review that for clear error. [00:49:38] Speaker 03: And there is no grounds to conclude that each of the findings in the district court somehow lacked evidence. [00:49:46] Speaker 03: And it hasn't been argued here. [00:49:48] Speaker 03: And so then the question is, do those findings support the ultimate conclusion? [00:49:52] Speaker 03: And they clearly do. [00:49:54] Speaker 03: For the reasons I said, there's multiple factors. [00:49:57] Speaker 03: No circuit court has limited what courts can consider or the fact finders can consider. [00:50:02] Speaker 03: in making this determination, because it's a counterfactual, right? [00:50:05] Speaker 03: It's something that the statute necessarily answers or requires the fact finder to answer a counterfactual. [00:50:14] Speaker 03: And so what that means is everything is relevant. [00:50:16] Speaker 03: And so courts have not put guardrails around, you know, how fact finders go about making that determination. [00:50:23] Speaker 03: And here you have a very strong case of misconduct, and not just that he violated the rules, [00:50:29] Speaker 03: why the company cared. [00:50:31] Speaker 03: I think that is very significant that the company does not just have rules that it enforces and spends, you know, devotes the resources to conduct a 12-hour hearing just to kind of catch people. [00:50:43] Speaker 03: No, all the rules serve a purpose and the district court here tied the two things together and said rule violation and why it matters. [00:50:51] Speaker 03: And I think that's what gets this case from the, you know, on the bubble to, you know, comfortably within, [00:50:58] Speaker 03: the discretion of the fact finder. [00:51:01] Speaker 03: The other thing is the absence or the existence and strength of a motive to retaliate. [00:51:07] Speaker 03: And again, the district court went through that and explained why, yes, the error test was a contributing factor, but here let's put it in context and see whether or not the company really had the incentive to retaliate based on that error test and made specific findings, again, none of which are challenged. [00:51:26] Speaker 03: And so for those reasons, I guess what I said at the beginning I think really holds that this is a straightforward case. [00:51:34] Speaker 03: It's a harder case maybe if you're the fact finder and you have to weigh, you know, four days of testimony and decide how it all cashes out. [00:51:42] Speaker 03: But this court's job is much more straightforward because of the standard of review [00:51:48] Speaker 03: The question is, is the district court's reading of the record illogical, incoherent, confused? [00:51:56] Speaker 03: No, it's not. [00:51:57] Speaker 03: There's testimony going in both directions. [00:52:00] Speaker 03: The judge was entitled to credit one testimony, one person's testimony. [00:52:06] Speaker 03: over another's. [00:52:08] Speaker 03: He made credibility determinations that were very important because he could observe the demeanor of the witnesses. [00:52:15] Speaker 03: Some of the witnesses were, it was their prior testimony because they weren't available, but there were many live witnesses there and he made findings based on that, those credibility determinations. [00:52:34] Speaker 03: Couple questions are things I wanted to also address in Mr. Youngbauer's presentation. [00:52:41] Speaker 03: He talked about Fresquez, that decision. [00:52:44] Speaker 03: I just want to make clear the procedural context was a jury trial that the 10th Circuit affirmed from BNSF's appeal. [00:52:53] Speaker 07: So again, that whatever testimony... The jury in that case found for the plaintiff. [00:52:58] Speaker 03: Correct. [00:52:59] Speaker 07: So presumably here, if the district court had found for the plaintiff, you'd have a tough time. [00:53:07] Speaker 07: right? [00:53:08] Speaker 07: Because it's a clear and convincing, a clear error review of that. [00:53:13] Speaker 03: Yes, Your Honor. [00:53:16] Speaker 03: Clear error is hard for whoever the appellant is, and as it should be. [00:53:20] Speaker 03: This case has been going on since 2014, and there's still not a resolution. [00:53:26] Speaker 03: And I think, again, there's enough here to say, you know what, the district court [00:53:33] Speaker 03: did what the law requires, made factual findings, drew inferences from the testimony, credited some, didn't credit others, and ultimately made a determination that rests at the heart of the fact finder's discretion. [00:53:49] Speaker 03: I think it's also important to, just on the comparator point, [00:54:02] Speaker 03: The page 10 of Mr. Youngbauer's opposition brief to the rehearing petition, he admitted that comparator evidence isn't required. [00:54:11] Speaker 03: And to my knowledge, no court has ever said it's required. [00:54:14] Speaker 03: And again, I think that's a rule for good reasons, or that it's not a rule for good reasons. [00:54:19] Speaker 03: And precisely because there's always got to be a first for every form of misconduct, every set of facts are going to be a little bit different. [00:54:29] Speaker 03: And so courts have sensibly said, yes, it can be probative. [00:54:32] Speaker 03: And if you lack comparator testimony or evidence, your case may be more difficult to prove depending on how the other factors, what kind of evidence you have on the other factors. [00:54:43] Speaker 03: But it's certainly not something that's required. [00:54:46] Speaker 03: But even if it were required, there's also testimony that I think is important that, let me find it. [00:54:57] Speaker 03: 6ER849, that there was testimony that suggests that Mr. Ringstad, who was a BNSF employee, testified that of the comparators that were on the record, so you take BNSFs that we talked about, the three, and then the ones that Mr. Youngbauer submitted, there's testimony that BNSFs comparators were more comparable, more similarly situated to Mr. Rookard. [00:55:22] Speaker 03: And so that's, I think, another [00:55:23] Speaker 03: The other important fact is that Mr. Rooker's comparators also accepted responsibility by waiving an investigation. [00:55:33] Speaker 03: And there was testimony that that can result in leniency. [00:55:37] Speaker 03: And so the non-discipline of other employees, when they've accepted responsibility, didn't go through the investigation, is itself a reason why they might not have been disciplined as severely. [00:55:48] Speaker 03: And that's at 6ER820. [00:55:53] Speaker 03: 84 to 86 sorry 845 to 46 and also page 847 Can I ask you one more question about the companies comparators? [00:56:07] Speaker 04: Do is does the record show what their prior disciplinary history was? [00:56:14] Speaker 03: I believe it does I [00:56:20] Speaker 03: Believe it does and I believe they didn't have prior discipline, but I'm not certain of that I can I can grab the site The er site because I know the exhibit number, but I'll have to look your honor. [00:56:33] Speaker 03: I'm not sure Unless the court has any further questions. [00:56:38] Speaker 03: Thank you for your time [00:56:54] Speaker 01: Going in reverse from what counsel just said He said that some of our comparators were offered waivers And that maybe they got better treatment for that if they admit their fault if you look at Six er 902 page 902 is the is the [00:57:19] Speaker 01: letter that goes to the charging letter that went to all three of the employees. [00:57:25] Speaker 01: They were all specifically told they were not eligible for a waiver. [00:57:32] Speaker 01: The company just said, no, we're not going to give you the chance. [00:57:35] Speaker 01: There goes that argument, because they didn't even give them the chance. [00:57:41] Speaker 01: When the council says, oh, well, what about first misconduct? [00:57:48] Speaker 01: We got to, you know, if the company really cares about honesty and all this stuff, if the company really cares and if justice is what we're all looking for in what we do, why not tell the employees clearly in the rules, if you do A, B, C, or D, you're going to get fired. [00:58:11] Speaker 01: Define insubordination. [00:58:13] Speaker 01: Define failure to comply with instructions. [00:58:17] Speaker 01: Tell us that if you go eat lunch, even though you're not going to get paid for it, that we're going to fire you. [00:58:24] Speaker 01: There's no way these employees were warned of that. [00:58:27] Speaker 01: Is that justice? [00:58:29] Speaker 01: Now, the, oh, motive to retaliate. [00:58:34] Speaker 01: Council said that [00:58:36] Speaker 01: The district court made a real clear, really looked into a motive to retaliate. [00:58:42] Speaker 01: What about the smoking gun email? [00:58:45] Speaker 01: There is no better proof of a motive to retaliate other than make an example of them, sending it to the decision makers. [00:58:57] Speaker 01: I'm never going to see that again, because that's in every training film they've got for officials now when you're going to fire somebody. [00:59:04] Speaker 01: Don't do this stupid move. [00:59:06] Speaker 01: Never going to see it again. [00:59:08] Speaker 01: So I got my one Perry Mason moment to have that. [00:59:11] Speaker 01: And by the way, Judge Jones never got to see that or hear it. [00:59:18] Speaker 01: The first jury did. [00:59:19] Speaker 01: The first judge, Lasnik, did. [00:59:22] Speaker 01: When I asked Mr. Johnson about this email, I asked him all about it. [00:59:30] Speaker 01: And the last question I asked him is, are you proud of that email? [00:59:35] Speaker 01: He said, yes. [00:59:39] Speaker 01: I stopped for about 30 seconds and rested. [00:59:42] Speaker 01: That's the kind of stuff that Judge Jones didn't get to see. [00:59:47] Speaker 01: He also didn't get to hear any of Mr. Rooker's defenses to all this stuff. [00:59:54] Speaker 01: At best, he could read it. [00:59:56] Speaker 01: I wasn't even allowed to read it to him. [00:59:59] Speaker 01: to emphasize it. [01:00:01] Speaker 01: And then they say witnesses, failure to call available witnesses, Mr. Hurlbert, the guy that's supposed to ensure uniformity, that they promised to me in a deposition, Mr. Wackerbart promised to me when I took his deposition that he would produce him at trial as they had in the prior trial, and they didn't. [01:00:20] Speaker 01: What about Mr. Crick? [01:00:22] Speaker 01: They produced him voluntarily in the first trial, but they wouldn't in this trial. [01:00:27] Speaker 01: They control all the cards, as the one case said. [01:00:31] Speaker 01: And when they control them, we're stuck. [01:00:34] Speaker 01: And that's why we need you to come up, please, come up with a definition of what should be done to test the affirmative defense, like OSHA's done in their pretext testing, as they call it. [01:00:48] Speaker 01: look for shifting explanations when they realize, oh, we can't fire them for a single event, and this is a single event, because it's not insubordination and it's not gross dishonesty. [01:01:02] Speaker 01: And they even, when it's that clear and you see the shifting explanations, [01:01:09] Speaker 01: Why are you going to believe these officials whose bonuses depend on how they testify? [01:01:15] Speaker 01: And Mr. Jones testified in this case that he has testified similarly in other cases in federal court. [01:01:23] Speaker 01: The company is lost where the jury and court didn't believe him, and nobody looked in to see whether or not he told the truth or had reasons for pretext in that case. [01:01:34] Speaker 06: Thank you so much. [01:01:36] Speaker 06: Appreciate the oral argument presentations here today by you, Mr. Youngbauer and Mr. Morell. [01:01:43] Speaker 06: The case of Paul Parker versus BNSF Railway Company is now submitted, and we are adjourned. [01:01:49] Speaker 06: Thank you.