[00:00:00] Speaker 03:
24-3154 Berberich versus Kansas City Southern Railway.

[00:00:06] Speaker 03:
Mr. Delbridge.

[00:00:07] Speaker 04:
Yes, sir.

[00:00:09] Speaker 04:
Good morning.

[00:00:10] Speaker 04:
May it please the court.

[00:00:11] Speaker 04:
My name is Charles Delbridge, and I'm here on behalf of the plaintiff appellant Justin Berberich.

[00:00:16] Speaker 04:
I'm going to try to reserve five minutes for rebuttal.

[00:00:21] Speaker 04:
The district court erred by impermissibly weighing the credibility of conflicting testimony at summary judgment when it discounted the testimony of Jeff Spigarelli as supposedly being unreliable.

[00:00:35] Speaker 04:
That error warrants reversal and remand for trial on Burbridge's remaining FRSA claim.

[00:00:43] Speaker 04:
I'm going to focus my argument on Jeff Spigarelli's testimony and the district court's treatment of it, because I think that issue is the most important issue on appeal here.

[00:00:52] Speaker 04:
And specifically, I'm going to focus on an argument that

[00:00:58] Speaker 04:
Kansas New Southern made in the briefing that the district court did not actually weigh the credibility of Mr. Spigarelli's testimony, but rather made an admissibility determination regarding that testimony and excluded it from evidence.

[00:01:13] Speaker 04:
I want to respond to that argument, and I've got three points I want to make in response to that argument.

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I'll roadmap them here right now, and then I'll go into some more detail about each.

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But first,

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That argument is just contrary to what the district court said.

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The district court explicitly weighed credibility and explicitly did not make an admissibility determination as to that testimony.

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Putting aside what the district court said, it's also incorrect to argue that Mr. Spigrelli's testimony is inadmissible.

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It's plainly admissible under the rules of evidence that govern the proceedings here, just as they did in the Department of Labor.

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And third, the question, putting aside both what the district court said about Mr. Spigrelli's testimony and whether it's admissible, that's not even really the question at summary judgment.

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The question at summary judgment is,

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Can the testimony be presented at trial in a form that would be admissible?

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So I'm going to take each of those three arguments up in some more detail.

[00:02:22] Speaker 04:
And again, I'm responding to Casey Southern's argument in their brief that, and this is at page 31 to 35 of their brief, that the district court didn't actually weigh Mr. Spigarelli's testimony and discount it based on credibility, but instead excluded it as inadmissible testimony.

[00:02:38] Speaker 01:
Council, can I throw you off track just momentarily, if I may?

[00:02:42] Speaker 01:
Your brief addresses knowledge of the protected activity, and that's really, as I read your opening brief, what your appeal is about.

[00:02:50] Speaker 01:
But can I ask about the protected activity itself?

[00:02:53] Speaker 01:
Certainly.

[00:02:53] Speaker 01:
And the district court found, as I recall, the only protected activity would be the throwing of the switch.

[00:03:02] Speaker 01:
But how do we square that finding with the statutory language itself in that it seems that

[00:03:12] Speaker 01:
The statute requires a real urgency about the safety concern that it requires an eminency of death or grievous bodily harm, and that any reasonable observer would perceive that that was the situation.

[00:03:26] Speaker 01:
But as I read this and understand it, Mr. Berberich,

[00:03:30] Speaker 01:
This was a sort of a policy that the railway had that others were following and he just disagreed with and on this instance said, well, I'm going to go for the switch.

[00:03:37] Speaker 01:
So how does that finding of that protected activity square with the statute?

[00:03:42] Speaker 04:
Sure.

[00:03:42] Speaker 04:
So the first point I'd make in response to that is I don't think the statute requires a certainty that the unsafe condition will result in injury or death.

[00:03:52] Speaker 04:
The testimony below, excuse me, the testimony relied on a summary judgment.

[00:03:57] Speaker 04:
indicates that Mr. Burbrick and others believe that it was unsafe to allow the engineer to just throw the air brakes on the train, get out of the train, and throw the switch themselves.

[00:04:11] Speaker 04:
It's not required and you know as far as is in the record there haven't been accidents caused by that happening but it was the testimony of Mr. Burbrick and others that it's dangerous to do it that way that if the engineer is going to leave the control of a train and

[00:04:30] Speaker 04:
They have to take the proper steps and do what's called tying the train down, which is manually throwing handbrakes on a number of the cars to make sure that it's stuck to the track, that it's not going to go anywhere.

[00:04:43] Speaker 04:
And I don't think the FRSA requires, I think it requires refusal to do, to work in an unsafe manner, to do the unsafe thing that you're being asked to do.

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I don't think it requires a certainty that if you go through with following the unsafe order that there will be an imminent

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Accident that will cause injury or death.

[00:05:05] Speaker 04:
I think you have to have a good faith belief that that's what you're doing That you're refusing to do something that could lead to injury or death, but but that would be my response to that question Let me pursue that.

[00:05:14] Speaker 03:
Did you?

[00:05:18] Speaker 03:
What was this order that That you're relying on that said the engineers not the conductors are supposed to do that and

[00:05:28] Speaker 03:
Can you tell me what exactly that order said?

[00:05:34] Speaker 04:
Sure.

[00:05:34] Speaker 04:
So it's not a written order.

[00:05:36] Speaker 04:
And it's not written because it actually conflicts with KCS's, Kansas City Southern's, own policies.

[00:05:42] Speaker 04:
But the order was, the evidence shows that it was a standing order instituted by Mr. Pollard.

[00:05:48] Speaker 04:
Well, what was the evidence was?

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Go ahead.

[00:05:53] Speaker 04:
Why don't you finish that part?

[00:05:54] Speaker 04:
Sure.

[00:05:55] Speaker 03:
Sure.

[00:05:55] Speaker 04:
And the order was that if a,

[00:05:58] Speaker 04:
conductor is remote from where the switch is that needs to be thrown, then the conductor is not to be the one to walk all the way the length of the train to the front of the train to throw the switch and walk all the way back, which is going to delay the train 10, 20 minutes, something like that.

[00:06:15] Speaker 04:
But rather the engineer should be the one to get, the engineers at the front of the train where the switch is in this scenario, that it should be the engineer to get out of the train, go through the switch and get back on the train to speed things up.

[00:06:28] Speaker 04:
That's the standing order.

[00:06:29] Speaker 04:
That's the evidence of that.

[00:06:31] Speaker 03:
Well, there was some discussion.

[00:06:33] Speaker 03:
Who issued this order?

[00:06:35] Speaker 03:
Mr. Pollard.

[00:06:37] Speaker 04:
And what's his rank in the hierarchy?

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He is a management level employee, so he's higher than Berberich.

[00:06:44] Speaker 04:
He's lower than Mr. Davini.

[00:06:47] Speaker 04:
I don't recall exactly how many steps below, maybe two steps below Davini in the hierarchy.

[00:06:53] Speaker 04:
And how did he issue this order?

[00:06:56] Speaker 04:
By telling, so again, it's not written.

[00:06:59] Speaker 04:
The testimony is that he had a regular practice of telling the engineers and the conductors that that's how it should be done.

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and that he has a regular practice of telling folks that that's how it's to be done, the engineers and the conductors, and that he has groused to people when they don't do it that way.

[00:07:22] Speaker 03:
Does the record, you had a few record references in your brief when you alleged this.

[00:07:30] Speaker 03:
Is it that clear who he said it to?

[00:07:32] Speaker 03:
It seems a little unclear to me.

[00:07:35] Speaker 03:
It may have been a little unclear, yes, to who he said it to.

[00:07:38] Speaker 03:
Well, it's important to you to have that order pinned down, is it not?

[00:07:44] Speaker 04:
I don't think it, so I think the argument is the same, and I think the argument's meritorious, no matter how

[00:07:51] Speaker 04:
not no matter how, but I don't think we need to go so far as to say here is a written policy somewhere that says that this is how it's to be done.

[00:08:00] Speaker 04:
I don't think we even need to go so far as to say, you know, Pollard told this person on this date and that person on that date and this person on this date.

[00:08:11] Speaker 03:
What's the evidence that he told the conductor this, as opposed to telling engineers, you do it?

[00:08:17] Speaker 04:
I am not in a better position to give a record citation than we gave in the brief, I'm afraid.

[00:08:23] Speaker 03:
Of those citations that you gave in the brief, is there one that says he told the conductors not to do it?

[00:08:32] Speaker 04:
My memory of what the record says on this point is that it's a general order that he's giving to everybody with some regularity.

[00:08:43] Speaker 04:
Not that it's okay, you know... Giving to everybody?

[00:08:47] Speaker 04:
Everybody's probably not the right word No, but that it's a standing, you know, it's in my office.

[00:08:54] Speaker 04:
We've got certain ways that we do things This this rail yard that I don't know how you pronounce it even the nocky yard they've got a standard practice of way that they do things and Mr. Pollard has being in charge of that yard and

[00:09:10] Speaker 04:
the evidence, there was evidence indicating that he gives this order regularly to the train personnel, the conductors and engineers.

[00:09:20] Speaker 04:
I'm not in a position to say more specifically whether it's directed specifically to the conductors or specifically to the engineers, but as I understand it, it's kind of a workplace procedure that he has implemented that is not written but that is understood, well understood.

[00:09:38] Speaker 02:
Did Berber testify that he

[00:09:40] Speaker 02:
Was aware of the order?

[00:09:41] Speaker 03:
Yes.

[00:09:42] Speaker 03:
Yes, he did.

[00:09:44] Speaker 03:
And what is the statutory?

[00:09:45] Speaker 03:
Can you read the statutory provision that was violated here?

[00:09:49] Speaker 04:
Yeah, it's section 20109B1B, I believe, is the statutory.

[00:09:54] Speaker 04:
Which says?

[00:09:55] Speaker 04:
It's going to take me a moment, but I can get there.

[00:10:06] Speaker 04:
Forgive me, I'm going to the response brief for that, because this was an issue raised.

[00:10:13] Speaker 04:
This is not the basis for the appeal, but it was raised by Ken City Southern as an alternate theory on which the court could affirm.

[00:10:26] Speaker 03:
I can tell you the gist of it is that what's refusing to work, you have it.

[00:10:32] Speaker 03:
I mean, that's the operative term, refusing to work.

[00:10:35] Speaker 03:
Correct.

[00:10:36] Speaker 03:
Correct.

[00:10:36] Speaker 03:
So what work did he refuse to do?

[00:10:38] Speaker 04:
So it's not refuse.

[00:10:40] Speaker 04:
I would take issue with the idea that it's refusing to do any and all work whatsoever.

[00:10:45] Speaker 04:
I think it's refusing to do the unsafe work or work in an unsafe manner.

[00:10:50] Speaker 04:
And so what he refused to do was comply with the standing order, which would have him sit back, stay at the end of the train,

[00:10:58] Speaker 04:
Allow the engineer to get out of the train, go throw the switch, and get back on the train.

[00:11:03] Speaker 04:
So the work he refused was to comply with the unsafe order.

[00:11:09] Speaker 04:
I don't think he... How did he do that?

[00:11:11] Speaker 04:
He did it by saying, I'm going to do it.

[00:11:13] Speaker 04:
Getting out of the train and walking to the front.

[00:11:16] Speaker 04:
Saying, I'll be right there, getting out of the train, walking to the front.

[00:11:20] Speaker 04:
That's how he did that.

[00:11:20] Speaker 02:
And by then, the engineer had already flipped the switch?

[00:11:24] Speaker 04:
No, no.

[00:11:25] Speaker 04:
Mr. Berberich is the one that threw the switch.

[00:11:29] Speaker 03:
Tell me if this is linked.

[00:11:31] Speaker 03:
Refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties.

[00:11:38] Speaker 03:
I have a hard time seeing how doing something extra fits that language.

[00:11:46] Speaker 03:
It's an argument that was made by the railroad that there was no protected activity here and that's what

[00:11:57] Speaker 03:
I'd like to explain how you fit refusing to work.

[00:12:01] Speaker 03:
Sure.

[00:12:02] Speaker 04:
Well, again, I'd point back to refusing to work, and I should recall the language that you just gave to me, but it's refusing to work in an unsafe manner, refusing to follow.

[00:12:13] Speaker 04:
No, it's refusing to work when confronted by a hazardous safety or security condition.

[00:12:18] Speaker 04:
Okay.

[00:12:19] Speaker 04:
So the hazardous safety condition that he was confronted with was the standing order

[00:12:25] Speaker 04:
that would require him to stay on a train that was not being operated by an engineer, where the engineer's not on the train, the engineer's getting down to throw the switch.

[00:12:36] Speaker 04:
And he refused to work by refusing to stay on the train and let the engineer do that.

[00:12:41] Speaker 04:
He got it, he said, I'm gonna do it, got off the train, walked to the front, threw the switch, walked back.

[00:12:48] Speaker 03:
So I don't think the law... It wasn't that he refused to work.

[00:12:54] Speaker 03:
It wasn't that he refused to stay where he was.

[00:12:56] Speaker 03:
It was that he did something extra, and that's what he's being purportedly sanctioned for.

[00:13:04] Speaker 03:
And I just... I have a heart...

[00:13:09] Speaker 03:
I guess you've given us your best shot at hell that what he did, what he did, he claims he was retaliated against because he went up to the front of the train and switched something.

[00:13:24] Speaker 02:
Right.

[00:13:25] Speaker 03:
And doing that, you're saying, was a refusal to work.

[00:13:29] Speaker 03:
Refusal to work when confronted by an unsafe condition.

[00:13:32] Speaker 03:
The ALJ couldn't understand that.

[00:13:33] Speaker 03:
Do you remember that in the ALJ's opinion?

[00:13:35] Speaker 03:
I do.

[00:13:36] Speaker 03:
He said he didn't think, or she, I don't remember the gender of the ALJ, but then said, I don't see how there's a refusal to work here.

[00:13:45] Speaker 02:
Right.

[00:13:46] Speaker 04:
You know, obviously we're appealing here because we take issue with the district court's opinion.

[00:13:51] Speaker 04:
That section of the district court's opinion on summary judgment we think is correct.

[00:13:55] Speaker 04:
We think the district court got it right, that that is a... It doesn't explain, it just says, I think it is.

[00:14:00] Speaker 03:
What I'm saying?

[00:14:01] Speaker 03:
No, yes, yes.

[00:14:02] Speaker 03:
The district court said I think this was a refusal to work without an explanation when the ALJ said otherwise.

[00:14:08] Speaker 04:
Well, I think the district court went through the factors of why it's a refusal to work, said rather the factors that are required under the B1B section when there's a refusal to work, that it be made in good faith, the refusal be in good faith, that there be no readily apparent other way to get around the issue.

[00:14:28] Speaker 04:
So I think there is some analysis there that the district court did, and I think the analysis is correct.

[00:14:33] Speaker 04:
But I do want to go back and try again to answer your concern.

[00:14:38] Speaker 04:
about how that's a refusal to work.

[00:14:40] Speaker 04:
And I don't think it is correct that the FRSA requires that for an activity to be protected activity that the employee refuse to do anything at all.

[00:14:52] Speaker 04:
I think what's required is that they refuse to work in the unsafe manner, refuse to work when confronted by the unsafe condition.

[00:15:00] Speaker 04:
I don't think it's required in order to qualify as protected activity that the employer just, you know, crosses arms and say I'm not doing anything.

[00:15:08] Speaker 04:
I think it's, I see that I'm out of time and I'll wrap up here.

[00:15:11] Speaker 04:
Go ahead and finish your thought.

[00:15:13] Speaker 04:
Okay.

[00:15:13] Speaker 04:
So I think it requires just refusal to work when confronted with the unsafe condition.

[00:15:18] Speaker 04:
The unsafe condition is the standing order.

[00:15:20] Speaker 04:
He refused to comply with it.

[00:15:22] Speaker 04:
And I think we have protected activity just as the district court found.

[00:15:26] Speaker 04:
And with that, I suppose I'm out of time.

[00:15:29] Speaker 04:
So I appreciate it, Your Honor.

[00:15:34] Speaker 03:
Ms.

[00:15:34] Speaker 03:
Harrison.

[00:15:41] Speaker 00:
May it please the court.

[00:15:42] Speaker 00:
Courtney Harrison, appearing on behalf of Appalooe, Kansas City Southern.

[00:15:47] Speaker 00:
What we have here is a case where an employee violated a major safety rule on video.

[00:15:53] Speaker 00:
He was found on video to be leaning against a rail car he had no control of for 30 to 40 seconds, seemingly with his legs crossed.

[00:16:02] Speaker 00:
And Appellant claims that when he was punished for violating that rule, that he was caught on video for violating, it was, in fact, in retaliation for him causing a train delay six weeks prior.

[00:16:14] Speaker 00:
The Drista Court found correctly on summary judgment that there was not sufficient evidence for Appellant to satisfy his prima facie case of retaliation.

[00:16:24] Speaker 00:
Kansas City Southern respectfully requests that the court affirm that.

[00:16:29] Speaker 00:
And I want to talk about three things today.

[00:16:32] Speaker 00:
The rule that was violated in the evidence it was violated to the union negotiated process that occurs prior to any adverse employment action and third the actual elements of the prima facie case and the evidence that was presented.

[00:16:47] Speaker 00:
I actually want to jump to that third point, because that's where this question of protected activity comes up.

[00:16:53] Speaker 00:
And Your Honors hit the nail on the head there.

[00:16:56] Speaker 00:
The question under the FRSA for protected activity for this provision is really twofold.

[00:17:02] Speaker 00:
Is there a refusal to work?

[00:17:04] Speaker 00:
And was there a confrontation with a hazardous or unsafe condition?

[00:17:09] Speaker 00:
There was no refusal to work here.

[00:17:12] Speaker 00:
The testimony that is actually in the record and was presented to the trial court and is currently in the record on appeal is that Mr. Pollard had a policy of occasionally telling engineers that they should throw the switch instead of waiting for a conductor to throw the switch.

[00:17:30] Speaker 00:
There's no evidence that this was a policy that applied in every single case.

[00:17:34] Speaker 00:
In fact, the evidence shows it was fact specific.

[00:17:38] Speaker 00:
There's no evidence that it applied in this case.

[00:17:42] Speaker 00:
The facts show that Mr. Berberich, in his own words, states he was working as a conductor on the back of the train.

[00:17:49] Speaker 00:
The engineer observed a switch needed to be thrown, and he volunteered to go do it.

[00:17:54] Speaker 00:
And then he did that.

[00:17:55] Speaker 00:
There was no refusal to work.

[00:17:57] Speaker 00:
There was no offer by the engineer, hey, I need to throw this switch.

[00:18:01] Speaker 00:
That's what Mr. Pollard expects.

[00:18:03] Speaker 00:
You need to wait in the back.

[00:18:05] Speaker 00:
None of that occurred.

[00:18:07] Speaker 00:
There's no refusal to work.

[00:18:08] Speaker 00:
He just did his job that did an extra duty and went up to the front of the train.

[00:18:13] Speaker 00:
Now importantly, Appellant said something just now about the hazardous and safety condition that he alleges that Mr. Burbridge was attempting to avoid.

[00:18:24] Speaker 00:
He admitted that engineers can properly switch a car so long as steps are taken to secure the rail car.

[00:18:34] Speaker 00:
that air brakes are applied, that the rail car is not going to move, there are things that can be done to protect the safety and ensure that it is not a hazardous condition.

[00:18:44] Speaker 00:
Nowhere in the record does it say that the engineer had not secured the car, that the engineer had not applied the handbrakes that needed to be applied.

[00:18:53] Speaker 00:
What we have in the record is an employee who heard that a task needed to be done, took it on himself to do that task,

[00:19:02] Speaker 00:
and was never punished for that afterwards.

[00:19:05] Speaker 01:
Council, can I ask you're arguing the facts as it relates to this protected activity.

[00:19:11] Speaker 01:
Some of our questions were driven towards the law and the definition that applies under B1B in terms of the refusing to work.

[00:19:20] Speaker 01:
And even if I can just look at the statutory language and sort of think the facts have some

[00:19:26] Speaker 01:
logical connection to it.

[00:19:28] Speaker 01:
I did notice your response brief was pretty short on citations to authority about how we interpret this part of the statute.

[00:19:34] Speaker 01:
So do you view this argument regarding the definition of refusing to work as sort of a novel legal position or what can we hang our hats on in terms of legal authority for interpreting the statute this way?

[00:19:51] Speaker 00:
The plain language of the statute.

[00:19:53] Speaker 00:
The statute is very clear on its face that there must be a refusal to work when confronted with a hazardous or unsafe condition.

[00:20:01] Speaker 00:
That is clear in the record.

[00:20:03] Speaker 00:
And there is no refusal to work here that occurred at all.

[00:20:07] Speaker 00:
And notably absent from any of the briefing is any legal support for the proposition that appellant just raised.

[00:20:14] Speaker 00:
That a refusal to work can encompass a refusal

[00:20:20] Speaker 00:
Do your employment activities in such a way that you believe is unsafe?

[00:20:25] Speaker 00:
There's no case support for that because the statute is clear on its face.

[00:20:29] Speaker 00:
The question is whether there is a refusal to work.

[00:20:33] Speaker 00:
No further analysis or review of case law is needed.

[00:20:36] Speaker 00:
The statute is clear on that point.

[00:20:38] Speaker 02:
Why isn't refusing to follow the standing order?

[00:20:42] Speaker 02:
Why can that be construed as a refusal to work?

[00:20:44] Speaker 02:
You're basically unwilling or refusing to comply with company policy.

[00:20:50] Speaker 02:
Why isn't that a refusal to work under the language?

[00:20:55] Speaker 00:
That is what Appellant has attempted to argue.

[00:20:57] Speaker 00:
But in order to do that, and I'd have to touch on the facts here, he would have to show that there was a standing order he was refusing to comply with at that moment in time, that that is actually what he was doing.

[00:21:09] Speaker 00:
And that's not what the evidence in the record shows.

[00:21:11] Speaker 00:
There's no evidence that on this day, anybody told the engineer they needed to throw the switch and Mr. Burbrick needed to remain where he was.

[00:21:21] Speaker 00:
The evidence is simply,

[00:21:23] Speaker 00:
An observation was made that a switch needed to be thrown.

[00:21:26] Speaker 00:
Mr. Burbrick offered to do that, and then he did so.

[00:21:29] Speaker 00:
There's no evidence at all, and he admits that he was not told he violated a rule that day, and he admits that he didn't refuse to work.

[00:21:38] Speaker 03:
He admits he didn't refuse to work?

[00:21:41] Speaker 03:
What exactly did he admit?

[00:21:43] Speaker 00:
He admits that he did not refuse to comply with any order that day, or that he did not refuse any task that was assigned to him that day.

[00:21:50] Speaker 03:
That's in the deposition.

[00:21:52] Speaker 00:
that is either in the deposition or the ALJ record.

[00:21:56] Speaker 00:
I don't recall, but it is in our briefing that we submitted with the court.

[00:22:04] Speaker 00:
I want to go back to the actual rule that led to the adverse employment action here.

[00:22:11] Speaker 00:
It's undisputed that GS7 is a safety rule.

[00:22:17] Speaker 00:
KC Southern has in place.

[00:22:19] Speaker 00:
that prohibits a wide range of activities to protect the employees.

[00:22:24] Speaker 00:
That is an undisputed fact.

[00:22:26] Speaker 00:
It's undisputed that in that rule, it's not allowed for an employee to lean or lay on any rail equipment, including a rail car, unless their job duties require it.

[00:22:38] Speaker 01:
So counsel, why does this matter for purposes of appeal?

[00:22:41] Speaker 01:
As I understand it, the district court found that was not protected activity.

[00:22:44] Speaker 01:
And that wasn't raised by the appellant in his opening brief to challenge that finding.

[00:22:48] Speaker 01:
So why does the lean against the rail car matter?

[00:22:52] Speaker 00:
It matters because he is claiming that when he was punished for leaning against the rail car, that was in fact retaliation for the switching incident six weeks prior.

[00:23:03] Speaker 00:
In this court, that requires a certain level of prima facie proof.

[00:23:07] Speaker 00:
He has to prove both that the ultimate decision maker who

[00:23:11] Speaker 00:
made the decision to make the adverse employment action was aware of the alleged protected activity and that the alleged protected activity contributed to it.

[00:23:21] Speaker 00:
And this court actually recognized in

[00:23:27] Speaker 00:
Thomas be very plastics, which is in the cats pot context.

[00:23:30] Speaker 00:
It's not in the FRSA context, but they address this question of what do you do when you have an independent evaluation process that takes place because it can't be the case that an employee is permitted to.

[00:23:44] Speaker 00:
so long as they have an argument of a protected activity that they are then allowed to violate the rules for the next six to eight weeks with no adverse action.

[00:23:54] Speaker 00:
The question is whether or not the employer has taken the proper steps to ensure that any protected activity does not contribute to any adverse employment action.

[00:24:03] Speaker 00:
So the rule that he violated in this case that led to the termination of his employment is important.

[00:24:12] Speaker 00:
Because if there is, as there is here, undisputed evidence that he in fact violated this rule, that he was allowed to defend himself in a union-negotiated proceeding where he presented evidence as to why he thought he did not violate the rule, and that he was thereafter punished for violating that rule, which was caught on video evidence, that is not retaliation under the FRSA, regardless of this question of protected activity.

[00:24:42] Speaker 03:
If the, he's not contesting that that wasn't protected activity that he was fired for.

[00:24:52] Speaker 03:
But if the punishment for that, for the leaning against the rail car,

[00:24:58] Speaker 03:
would ordinarily have been less or might have been less.

[00:25:03] Speaker 03:
And it was a retaliation for the earlier protected activity that the sanction was so harsh, he would have a claim, would he not?

[00:25:13] Speaker 00:
If those were the facts, he would, but those aren't the facts we have here.

[00:25:18] Speaker 03:
Well, it's not enough, though, to say, well, that can't be the situation because it wasn't a protected activity.

[00:25:26] Speaker 03:
I mean, from what you've said so far, it's not clear to me why it couldn't have been that they punished him more harshly because of the earlier protected activity.

[00:25:35] Speaker 00:
Because it's undisputed that the punishment for the violation of this rule could have been nothing other than termination of his employment.

[00:25:45] Speaker 00:
There is an employment matrix that all of the employees are bound to.

[00:25:48] Speaker 00:
It's negotiated with the union.

[00:25:50] Speaker 00:
And because Mr. Berbridge has two undisputed prior violations, a major infraction and a minor infraction, once he violated this rule, there was no leeway to do anything other than to terminate his employment.

[00:26:04] Speaker 00:
That's clear in the record.

[00:26:05] Speaker 00:
That is clear in the record.

[00:26:06] Speaker 00:
And it's undisputed that this matrix is enforced.

[00:26:11] Speaker 01:
Am I correct that the district court, though, didn't look at the...

[00:26:15] Speaker 01:
fourth element of the prima facie case at all because it decided it on the second of knowledge.

[00:26:20] Speaker 01:
So this argument may have been made, but for the district court I'm not suggesting it wasn't, but in terms of the order that we are reviewing, Judge Melgren's order, it did not address at all this fourth factor of the prima facie case.

[00:26:32] Speaker 01:
Do I have that right?

[00:26:33] Speaker 00:
That's correct.

[00:26:33] Speaker 00:
The court relied on the lack of knowledge that the evidence was not sufficient, the admissible evidence was not sufficient to show

[00:26:40] Speaker 00:
that the ultimate decision maker, Mr. Devaney, had any knowledge of the alleged protected activity.

[00:26:46] Speaker 00:
And that is the conclusion of his analysis.

[00:26:48] Speaker 00:
Of course, this panel has the right to affirm on any basis that is clear in the record so long as it was presented to the trial court.

[00:26:55] Speaker 00:
And that is the reason we are making this additional argument as to the breaking of the causal strain on the contribution element.

[00:27:08] Speaker 00:
I want to address, because it just came up, this question of knowledge.

[00:27:13] Speaker 00:
That is how Appellant started his brief that he wanted, or his opening argument that he wanted to talk about the trial court's alleged error in analyzing whether or not the ultimate decision maker had knowledge.

[00:27:28] Speaker 00:
And there was no error there.

[00:27:29] Speaker 00:
The briefing that we have submitted is clear on that.

[00:27:32] Speaker 00:
This court has held that in order to dispute a material fact sufficient to avoid summary judgment, the evidence must be admissible.

[00:27:42] Speaker 03:
The witness said, I heard the voice.

[00:27:49] Speaker 03:
He knew who the man in the office, I'm terrible with names, whom he was talking to.

[00:27:58] Speaker 03:
The judge said, well, he didn't even know what month it was, but he did testify it was after the incident, before he was fired.

[00:28:07] Speaker 03:
Why is that not enough to, and the timing was fairly close within six weeks, why is that not enough to support a finding that the decision maker knew of the protected activity?

[00:28:20] Speaker 00:
Because of the full context of that testimony that you were just referring to, what the witness said

[00:28:25] Speaker 00:
He was asked, do you recall a conversation that took place after January 2019?

[00:28:31] Speaker 00:
He said he was.

[00:28:32] Speaker 00:
He was then further asked about that conversation.

[00:28:35] Speaker 00:
And despite knowing that the switching incident occurred in January 2019, he admitted he didn't know if the conversation he heard occurred in December or January or even the year.

[00:28:50] Speaker 03:
But he didn't elsewhere say it happened after the incident?

[00:28:54] Speaker 03:
He heard the conversation after the incident?

[00:28:56] Speaker 00:
No, he answered that in response to a question.

[00:28:57] Speaker 00:
I understand that you overheard a conversation after January 2019.

[00:29:04] Speaker 00:
He said yes.

[00:29:05] Speaker 00:
But then when questioned admitted, he did not know when it occurred.

[00:29:08] Speaker 01:
But don't these points just go to the weight that would be afforded Mr. Spigarelli's testimony?

[00:29:13] Speaker 00:
Not if it's sheer speculation.

[00:29:16] Speaker 00:
Devaney testified under oath that he had no knowledge

[00:29:20] Speaker 00:
this conversation did not occur and he had no knowledge of Mr. Rick's activity.

[00:29:24] Speaker 01:
Yeah, but a trier fact could say, you know, Devaney is perhaps not being truthful or just misremembers, and we think Spigarelli's testimony, based upon him even being pressed in the transcript about his recollection, and he admitted it was four years ago, I may not, but here's what I remember, the jury or any trier fact would give that greater weight, and that's why we have findings of facts.

[00:29:46] Speaker 01:
So how does

[00:29:48] Speaker 01:
I guess what I'm getting at is I heard your argument point to be it has to be admissible, but what I really think I'm hearing is this is a weight, not admissibility issue.

[00:29:56] Speaker 00:
It's inadmissible speculation, but putting that aside for a moment, assuming without conceding that the panel finds it was admissible and it goes to weight, it wouldn't have changed the analysis as to whether or not the decision maker made this decision to impose adverse employment actions because of

[00:30:18] Speaker 00:
the alleged protected activity six weeks earlier for all of the reasons that I've already highlighted here.

[00:30:23] Speaker 00:
They all work together.

[00:30:24] Speaker 00:
The elements are very intertwined.

[00:30:26] Speaker 00:
And that's why we've addressed each of them, even though the district court relied solely on the knowledge question.

[00:30:32] Speaker 00:
And I'm running out of time.

[00:30:33] Speaker 00:
And so I'll close unless the panel has additional questions with requesting that the trial court's summary judgment grant be affirmed.

[00:30:43] Speaker 03:
Thank you, Kathy.

[00:30:48] Speaker 03:
Mr. Delrich, if you want to dispute, I'll give you a few seconds if you want to dispute any facts.

[00:30:56] Speaker 03:
Sure.

[00:30:56] Speaker 04:
I'll just make one very, very quick point, which is what Mr. Spigarelli said in the testimony that was discussed was he was asked whether he overheard a conversation shortly after the switching incident.

[00:31:09] Speaker 04:
It wasn't shortly after January 2019.

[00:31:11] Speaker 04:
It was shortly after the switching incident.

[00:31:13] Speaker 04:
So to your point, it is true that it's an event, event, event.

[00:31:17] Speaker 03:
Thanks.

[00:31:19] Speaker 03:
Okay, thank you, Council.

[00:31:20] Speaker 03:
Case is submitted.

[00:31:21] Speaker 03:
Council are excused.