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Judge 7164, Robert Lee Johnson, appellant versus Interstate Management Co., LLC, doing business at Hampton Crown Plaza Hotel and Vanessa R. Peter Human Resources.

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Ms.

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Deutsch for the amicus curiae, Mr. Morades for the appellees.

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Good morning.

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Good morning, and may it please the court.

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In crafting OSHA in 1970, Congress told whistleblowing employees that they have a right not to be discriminated against for reporting health and safety violations.

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And although no express private remedy was provided, there is ample evidence in the statute's text and structure that Congress wanted employees to be able to directly vindicate that right, that linchpin right in federal court.

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Taylor's holding that the optional secretary suit was meant to be the exclusive remedy ignores all statutory signs to the contrary and should be rejected.

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First, 11C1 has a critical textual focus on creating rights for a protected class of actors.

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And nothing more was necessary in 1970, which was the judicial heyday for implying private rights of action.

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But we have more in the statute.

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Going to the next provision, C2.

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The permissive may introduces the secretary suit, which shows that it cannot be the exclusive remedy, as employees need not notify the secretary at all.

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Of course, they can do nothing, but the may, particularly given the backdrop at the time, means that employees can bypass the secretary and go directly to court.

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At most, as the Department of Labor said in its amicus brief filed in the Taylor case, it gives the Secretary an optional first dibs to help make law in key cases where it chooses to deploy agency resources.

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Third, C3, the notice provision, would be an empty formality

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except unless it is there to give an employee the alert needed to ready private suit in the event of secretarial inaction.

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Fourth, placement of the provision within the overall judicial review section contemplates existence of a private remedy.

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As the Secretary noted in 1980, judicial review of secretarial inaction under this section is

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unlikely.

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They argued that it was presumptively unreviewable in 2001 in the Wood case.

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I know it's an open question in this circuit.

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But their argument then, which in 1980 I think holds today, that allowing a private right is the only guarantee that an employee would get judicial review of a violation of 11C under this statute.

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Are you aware of any statute where

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there's no cause of action to enforce the substantive protections of the statute.

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I see here there's no private cause of action to enforce the substantive protections.

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All the ones I can think of as they implied them, there's already a private cause of action under Title VII and the scores of discrimination statutes, and then retaliation was implied in addition to that.

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Title VII is a statute that deals only with discrimination and retaliation.

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This is a little different in so far as it's a civil rights provision of an overall regulatory statute where the anti-discrimination right is a linchpin that protects the employees who would be reluctant to come forward and

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Congress didn't want a private right of action to enforce the substantive standards.

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Right, they didn't, and it makes sense because there's a comprehensive administrative enforcement scheme for those substantive standards that Congress didn't want private parties interfering with, and the Secretary has the comparative advantage and expertise in setting those standards, enforcing them.

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There's a mandatory exhaustion requirement for challenges to citations.

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I think the initial version maybe could be read that way where there was going to be a full review and record hearing in the agency for this, but I think the legislative progression here far from

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narrowing the employees' right actually narrowed the agencies' right, and Congress recognized that the courts were better positioned.

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to adjudicate these claims.

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And the Secretary really has an optional role in this part of the statute, which is not to say that it's a lesser part.

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It's just that Congress recognized there were scarce enough resources to just do the key function of the agency, which is the health and safety violations.

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And they're more behind now than they were in 1980, when the Secretary said the private right was a necessary supplement.

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Is there any state law cause of action that someone could bring when their employer retaliates against them?

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There aren't any circuit court opinions on this.

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The district courts I've seen are divided, and it comes up in removal cases bouncing around.

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Some people say it's preempted, and some people say that state law, constructive discharge, public policy, causes of action could fill that role, particularly given

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the court's interpretation so far that there's no private right.

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Do you know whether DC law affords anything?

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I do not know the answer to that question.

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Insofar as the Taylor decision, and I recognize that we're asking you to create a circuit split by ruling not only against Taylor, but all the many

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courts that have... We do that on occasion, though.

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Wouldn't we follow Taylor?

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And, you know, I was watching a horror movie with my son and he said, if you get the queen, you get the hive.

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So if we get Taylor, I think we get everything else.

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But the problem is, why would we

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And we're willing to create circuit splits, but why would we here in the sweep of Supreme Court law, as you're well aware and acknowledge correctly, is not – to leave these kinds of questions to Congress.

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And at a big-picture level, that's obviously the problem you're facing here.

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At least, we don't usually create rights of action anymore.

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So how can we get around that?

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Ben Rock's too strong, but basic principle that I think's in the law now.

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Well, I think a few things.

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First of all, the fact that this is a 1970 statute matters very much.

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And Cannon, Sandoval, Morse all make that clear.

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And Morse is a 1996 case where they inferred a private right of action under Section 10 of the Voting Rights Act.

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So it's still possible.

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Indiana Protection Advocate Service with Interstate Sites, the Seventh Circuit on Banques, where they inferred a private right of action in 2010, 2011.

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So the fact that courts are not regularly in the business of implying rights of action these days doesn't mean it's impossible.

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It just means you have to pass the test.

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Do you know if Congress has considered since in the last several decades whether to put a private right of action?

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They've considered a few things.

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So my understanding is that there has been some request to put a private right of action in.

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There have also been two failed amendments introduced in 95 and 97 by Senator Hutchinson.

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to expressly say that the Secretary's suit was the exclusive remedy and that the 30-day deadline is non-tollable under the regulations the Department of Labor tolls it.

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The inaction, which you can't get much from in all events, goes both ways.

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But it at least shows that Congress is aware.

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Congress is aware.

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And nothing's happened.

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Yes, but something important happened in 1970, which was bicameral passage and signing by the president.

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And that matters a lot more than Congress doing nothing going forward.

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You rely a lot on

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what the world was like at the time the statute was passed, the implications of rights of action.

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He also said this is a regulatory statute, it's different.

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It's a regulatory statute that then has this retaliation provision in it.

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in the world all seem to involve forms of employment discrimination, not regulatory.

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Is there an example of a regulatory scheme in the canon era in which rights of action were implied?

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The closest cognate is the Federal Mind Safety Act, and my apologies that we didn't brief this.

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It was something that I, during anticipating this question, during oral argument, and there is not an implied right of action under that statute.

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There's a district court case that goes into it, but tellingly in... Not an implied right of action for retaliation?

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No, but it has a similar

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retaliation prohibition, but it mirrors the initial version of the OSHA Act in the Senate where there's full hearing and review in the agency and it also has provisions

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for employees to challenge the result of that agency review.

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So it was a much more comprehensive enforcement scheme.

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So an important, I think, difference in this statute and what separates it from Title VII, as well as the health and safety provisions within OSHA, is that there is no comprehensive administrative scheme at all to protect this linchpin fulcrum.

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It's basically an option to ask the secretary for help.

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and otherwise the right remains unvindicated.

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And in that day and age where the rights language was itself enough for courts to create a remedy, that will do it.

[00:10:31] Speaker 04:
It's not only that it's regulatory, but the employer-employee relationship, separate part from race and gender discrimination, and this type of matter was still something that was heavily regulated.

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by states, so why isn't the easier assumption that not only Congress wanted to apply a right of action here, not only Congress intended a right of action here, but that they thought if this didn't work, you would just resort to state court.

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That's definitely a possibility.

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The legislative history is largely silent on this provision.

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The one specific mention is page 57 of that big compilation, where it's in reference to the House version.

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And the House version was actually not an adjudication at all.

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It was a prosecutorial provision where there were fines and possibilities of even imprisonment for violating the prohibition.

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And there, one of the members said that employees would be reluctant to come forward.

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State, I don't have a ready answer to why Congress wouldn't assume that constructive discharge or other state actions were there, but I do know that this language was drafted at a time

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Allen was decided in 69, Sullivan was decided in 69 or 70.

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there was a shared understanding between Congress and the courts that dual enforcement for remedial schemes was permissible and made sense.

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And if anything, the fact that Congress shifted the secretary's role to the sort of supplement conduit to the courts shows that Congress thought the federal court should be involved, specified the sorts of remedies that would be available,

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and recognize that there is a public-private hybrid going on here because of the provision situation in a regulatory scheme, so that in cases where the Secretary thought there would be high impact and want to make the law and give a larger signal,

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to an entire industry or sector, they could get involved.

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And in other cases which deal with a one-off claim, the employee would nonetheless be able to vindicate that right without wasting agency resources.

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And the secretary made that argument in 1980, and they suggested as much in their 2001 brief in Wood that they engage in these sort of policy-making exercises before proceeding to court.

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The employee role in this statute is essential, and they have duties and responsibilities under this statute.

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It's arguably an obligation for them to come forward and report, and it begs reason that Congress would place such a heavy load on them without ensuring that they were protected for doing something that they also recognized was essential, given how few

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the inspectors were.

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So in 1980, the backlog of cases was one-third.

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Now the backlog is two-third of cases, and there's a distinction because they have more complaints than cases.

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So only about one-third of the complaints turn into cases that are evened open.

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They're also responsible for enforcing some 20 whistleblowing statutes.

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So this was the first, and we cite some on page 39 in our brief.

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There's a bunch more.

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Those are all enforced.

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by OSHA.

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And this is an agency that has one inspector per 60,000 employees, 2,200 inspectors for 8 million workplaces.

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So to the extent that the reasoning in Allen and in Cannon that the statutory promise would remain unfulfilled without the private right applies today, it is certainly more the case now than it was in 1980.

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And I'm happy to rest on my briefs with respect to race judicata and the pretext stuff, but I'll also answer questions.

[00:14:48] Speaker 05:
All right, if there are no questions, we'll give you some time and reply.

[00:14:51] Speaker 02:
Okay.

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Thank you.

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Just final word on the private right before I sit down.

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Rather than shrugging off some textual precondition, which I know is a concern in the Fay case and in reading this statute,

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Inferring a private right is the only way to give effect to every textual choice made by Congress in 11C.

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And again, they were making these choices in an era where the backdrop was to give effect to the remedy needed to protect the right.

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The right couldn't be more clearly enunciated, and its placement

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in judicial review and the notice provision especially show that Congress intended employees to be able to directly vindicate this protection.

[00:15:39] Speaker 05:
Thank you.

[00:15:53] Speaker 01:
Good morning, Your Honor.

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May it please the Court?

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I think it's interesting to note that the friend of the Court and my friend as well indicated that basically the legislative history was silent with respect to this issue.

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after court when Cannon came out.

[00:16:11] Speaker 01:
The lynchpin in Cannon is the fact that it was explicitly found in the legislative history that Title IX was modeled after Title VI.

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Congress knew that Title VI was already found to have an implied right of action, ipso facto, and a right of action existed.

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And I think before we get to the private right of action, three years ago, a panel of this court, Judge Henderson and Judge Kavanaugh were on this panel,

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that there is no private right of action in a case between appellant and appellee.

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And that case is what we believe controls with respect to the Reggie Ducata issue.

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Appellant filed a claim, which is now before the court, alleging multiple causes of action.

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One was OSHA retaliation.

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One was retaliation for filing a charge under the EEOC.

[00:17:06] Speaker 01:
The district court dismissed the OSHA retaliation claim because there was no private right of action, as every court who has ever looked at the issue held.

[00:17:15] Speaker 01:
Mr. John's appellant, undeterred, filed another litigation in the same court alleging OSHA retaliation against my client, the appellee.

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That case was dismissed because there's no private right of action.

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That case was appealed to this court.

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This court affirmed

[00:17:38] Speaker 04:
uh... mister appellant uh... yes yes sir that that is correct it was uh... i'd i'd believe we believe it does and i think

[00:18:06] Speaker 01:
the four standards with respect to, you know, claim preclusion, excuse me, claim preclusion.

[00:18:14] Speaker 01:
I think shows that he had an opportunity to litigate the case.

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Court made a ruling.

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The same parties were in that ruling.

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The case was.

[00:18:25] Speaker 04:
I'm just curious about whether full and fair litigation includes this be as one.

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Uh, just missile without even even service.

[00:18:34] Speaker 04:
Um, on the other side.

[00:18:36] Speaker 04:
Well, you know, I cases you're aware of.

[00:18:39] Speaker 01:
There are no cases that I'm aware of on that particular issue.

[00:18:42] Speaker 01:
I think it's rather unique because if Interstate was served, it is likely that Interstate may have argued that this claim was precluded by the prior claim or it should be state.

[00:18:55] Speaker 04:
That would not present the question I'm raising now.

[00:19:02] Speaker 01:
That's correct.

[00:19:02] Speaker 01:
I mean, it's rather unique that it would be so espante before service where an inform of a motion was made in form of that was granted and it went through.

[00:19:11] Speaker 01:
But be that as it may, a panel of this of this court said that there's no private right of action and affirmed the district court's ruling and perspective doesn't

[00:19:23] Speaker 04:
You have presented your brief, two arguments on which you think you prevail.

[00:19:27] Speaker 04:
One is res judicata, one is the merits of this right of action issue.

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As for you and your client, does it matter as between the two?

[00:19:37] Speaker 01:
Of how they prevail?

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Not at all, of course.

[00:19:42] Speaker 01:
Well, I think the court may be obligated to look at res judicata first.

[00:19:48] Speaker 01:
That is true, but I think traditionally courts have looked and determined whether or not there would be a preclusion.

[00:19:54] Speaker 01:
But no, it does not matter.

[00:19:56] Speaker 04:
Do you have a client that probably has more of an institutional interest in the OSHA issue than the race-based crime issue?

[00:20:02] Speaker 01:
I wholeheartedly agree, Judge.

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And I also think that there's a third reason why my client prevails.

[00:20:09] Speaker 01:
And that's because there's no evidence in the record at all

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that the honest and reasonably held belief given by the decision maker on your sworn declaration was not honest and reasonable.

[00:20:23] Speaker 04:
They point to evidence.

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For example, he left at 1.30 and the whole fight was about who cooked the dinner.

[00:20:33] Speaker 04:
He didn't come forward with any evidence that said the dinner cooker cooks dinner at noon before they leave at 1.30.

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And there was evidence about lack of an investigation

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Again, I'm not saying who's got the right story at all here just for purposes of summary judgment.

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Is there a disputed question of that?

[00:20:58] Speaker 04:
Why doesn't that evidence count?

[00:21:01] Speaker 01:
Well, we actually, it's not evidence.

[00:21:05] Speaker 01:
What was before the district?

[00:21:06] Speaker 04:
Why isn't, I left at 1.30 so I couldn't have cooked dinner and you offered no counter answer to that.

[00:21:12] Speaker 04:
Why isn't that acutely relevant?

[00:21:19] Speaker 01:
Sure, and I understand your question because I think the focus point from appellee's perspective and what the court focused on is what Ms.

[00:21:32] Speaker 01:
Peters knew.

[00:21:33] Speaker 04:
No, I'm asking why it would be reasonable.

[00:21:36] Speaker 04:
She doesn't deny that she knew that he left at 1.30.

[00:21:46] Speaker 04:
an investigation as to why they thought it was he that did it.

[00:21:52] Speaker 04:
And so I'm focusing on the requirement is that it be reasonable and honest and reasonably is what you said.

[00:22:00] Speaker 04:
And I'm questioning whether that standard can be met on this evidentiary record.

[00:22:06] Speaker 01:
Just for purposes of whether it goes somewhere else.

[00:22:09] Speaker 01:
And I understand your question.

[00:22:10] Speaker 01:
She doesn't deny those things.

[00:22:12] Speaker 01:
But she doesn't affirmatively say, I knew he left at 1.30.

[00:22:17] Speaker 01:
What he said, what Ms.

[00:22:19] Speaker 04:
Peters does- How could it be reasonable to believe someone did it without knowing whether they were there?

[00:22:23] Speaker 04:
Is it reasonable for me to think I just saw someone did it without inquiring whether they were there at the relevant time?

[00:22:28] Speaker 04:
Is that reasonable?

[00:22:30] Speaker 01:
It may not be, but Ms.

[00:22:31] Speaker 01:
Peters was not the one that did the investigation.

[00:22:34] Speaker 01:
Ms.

[00:22:34] Speaker 01:
Peters had Mr. Wolf and another employee, Mr. Rickling, who completed the investigation.

[00:22:42] Speaker 01:
Mr. Rickling deceased shortly thereafter.

[00:22:45] Speaker 01:
Mr. Wolf reported to Ms.

[00:22:48] Speaker 01:
Peters that Mr. Johnson was the one that cooked the chicken.

[00:22:52] Speaker 04:
Sure, but then there's all kinds of evidentiary disputes about that.

[00:22:56] Speaker 01:
decision you can't sort of wander the problems through somebody out of ignorance that doesn't make it reasonable to be right you have to say why do you think it's him well yes and we don't it is true there's nothing before the record no evidence on the record that says what the discussions were how many what was the investigation how many people were interviewed how many people were

[00:23:21] Speaker 04:
on this record, whatever you need to dispute another time, but on this record he left at 1.30.

[00:23:30] Speaker 01:
That he, I'm sorry.

[00:23:31] Speaker 04:
And he left that day at 1.30.

[00:23:33] Speaker 01:
Yes.

[00:23:33] Speaker 04:
It was a dinner issue.

[00:23:35] Speaker 01:
Correct.

[00:23:35] Speaker 01:
It was an evening meal issue for an employee.

[00:23:38] Speaker 04:
Right.

[00:23:38] Speaker 04:
Evening.

[00:23:39] Speaker 01:
Yes.

[00:23:39] Speaker 01:
And there's nothing.

[00:23:40] Speaker 04:
There's a long way away from evening.

[00:23:42] Speaker 01:
Yes.

[00:23:42] Speaker 01:
In my household, though, I mean, I eat food at dinner time that was made at lunchtime, and that happens.

[00:23:47] Speaker 01:
Now, there's nothing in the record that points to that's the typical thing that happens where people eat, you know, employees.

[00:23:53] Speaker 01:
At a restaurant.

[00:23:54] Speaker 01:
or in a restaurant.

[00:23:55] Speaker 01:
But again, these are co-workers at the hotel.

[00:23:59] Speaker 01:
Mr. Peterson, who was a co-worker, I'm not even sure was actually a restaurant employee as opposed to another hotel employee.

[00:24:05] Speaker 01:
But the key here is that there's, Ms.

[00:24:08] Speaker 01:
Peters testified under oath that she was told Mr. Johnson was the one that cooked the chicken at issue.

[00:24:15] Speaker 04:
She also knew that- The person who told her that had a reasonable

[00:24:21] Speaker 01:
Well, again, we don't know what Chef Wolf believed.

[00:24:24] Speaker 01:
He swore under oath that he made the determination, he did the investigation, and that there was no discriminatory intent.

[00:24:32] Speaker 01:
There was no retaliatory intent.

[00:24:33] Speaker 04:
And he's conclusively saying that we think it was him and it wasn't discriminatory.

[00:24:38] Speaker 04:
That can't, it would be dangerous for us to adopt as...

[00:24:42] Speaker 04:
her absolving liability, gave you past summary judgment on one of these types of discrimination?

[00:24:48] Speaker 01:
Well, again, I think we have to focus on what the district court had before her, which was four declarations from interstate former employees or employees indicating that an investigation was done, that Mr. Johnson was found to be the one that cooked the chicken, that Mr. Johnson had 12 or 13 prior other food and sanitary issues.

[00:25:09] Speaker 01:
And when read in that context,

[00:25:10] Speaker 01:
with no countervailing evidence other than argument made in brief by the appellant and a time card showing that he left at 1.30, which we don't.

[00:25:31] Speaker 04:
he he he he questions he he alleged that a lot of way out that a lot of these things weren't signed and so he's great again I'm not expressing any of you on the merits but the question here is has there been questions raised this is just can't be decided whether it was a reasonable investigation or a

[00:25:55] Speaker 04:
from his viewpoint, I'm not ascribing it to you, but from his viewpoint, a targeted discriminatory investigation that really had to meet behind it for the money.

[00:26:06] Speaker 01:
And again, I do understand your question, but I think it goes to what the district court had at that time, and what the district court had was four sworn statements, a record litany of food handling issues.

[00:26:17] Speaker 01:
You identified one issue where he says he couldn't have lifted the chicken into the can.

[00:26:23] Speaker 04:
Yeah, but that some of them weren't signed.

[00:26:26] Speaker 01:
I think none of them were signed, and part of that was he admitted he couldn't see them because he was partially blind or legally blind.

[00:26:33] Speaker 01:
I mean, again, that doesn't mean that that didn't happen.

[00:26:36] Speaker 01:
And the real issue here is what Ms.

[00:26:37] Speaker 01:
Peters knew at the time the decision was made.

[00:26:40] Speaker 01:
And if you look at the arguments that Mr. Johnson made and you treat that as evidence, for example, I didn't cook the chicken, and we want to focus on that, although below, we said that that wasn't the issue.

[00:26:51] Speaker 01:
The real issue is just what Ms.

[00:26:52] Speaker 01:
Peters said.

[00:26:53] Speaker 01:
He, in those same pleadings,

[00:26:55] Speaker 01:
argued that the real reason why he was fired is because he reported his superior with respect to treatment of other employees, and that's JA573.

[00:27:02] Speaker 01:
He also said he was fired because of retaliation for workers' compensation claims.

[00:27:07] Speaker 01:
That's JA565 and 569.

[00:27:09] Speaker 01:
Or maybe because he was black, and that's JA559.

[00:27:12] Speaker 01:
He also said it was because of his age at 566 and 567.

[00:27:15] Speaker 01:
So again, there's no evidence, and the key here is causation as well.

[00:27:21] Speaker 01:
I mean, linking the termination to

[00:27:26] Speaker 01:
some sort of protected right, assuming that residue decada doesn't apply, assuming that this court finds that OSHA, there is a private right of action, or if we're just focusing on the EEOC charge, there's a six-month or seven-month gap, depending on what protected activity we're looking at, and there's nothing indicating that this has anything to do with any of that.

[00:27:46] Speaker 01:
And I know I'm a little bit over if anybody else.

[00:27:49] Speaker 05:
All right.

[00:27:51] Speaker 05:
Thank you.

[00:27:52] Speaker 01:
Thank you very much.

[00:27:53] Speaker 05:
Does Ms.

[00:27:53] Speaker 05:
Deutsch have anything?

[00:27:56] Speaker 02:
why don't you take a couple minutes thanks very much first on the legislative history all that would be needed would be an expressed denial of the private right which we don't have and canon actually had legislative history going both ways including a rejection of request by senator keating to include an expressed private right and that was enough

[00:28:24] Speaker 02:
On res judicata, in addition to all the reasons we briefed, and we briefed issue preclusion precisely because claim preclusion doesn't even apply because interstate is not a party.

[00:28:35] Speaker 02:
It was never served.

[00:28:36] Speaker 02:
That's section 34 of the restatement.

[00:28:39] Speaker 02:
So they're not entitled to the benefits of res judicata.

[00:28:41] Speaker 02:
And apologies for not spelling that out as clearly.

[00:28:44] Speaker 02:
But issue preclusion and the first in time rule is there precisely to avoid the kind of mess that happened here.

[00:28:52] Speaker 02:
The best reading of Judge Bourbon Jackson's dismissal is a preclusion dismissal.

[00:28:57] Speaker 02:
Yes, she

[00:28:59] Speaker 02:
may have endorsed the merits ruling in her suicide same day, non-serving interstate dismissal.

[00:29:06] Speaker 02:
But that case should have been dismissed on race judicata or issue preclusion cards at the outset.

[00:29:13] Speaker 02:
I won't go more into that.

[00:29:14] Speaker 02:
I think there are many, many ways of disposing of the race judicata.

[00:29:18] Speaker 02:
With respect to pretext, a few things.

[00:29:21] Speaker 02:
The magistrate judge

[00:29:23] Speaker 02:
wrongly says at six fifty that finessa peters personally investigated this she did not she uh... took spencer wolfs word he's a biased actor actor as uh... judge molette noticed unsupported statement

[00:29:40] Speaker 02:
The bottom line is, throughout this litigation, Interstate has not been able to come up with a simple, coherent, unshifting story about how it was possible for Mr. Johnson to prepare the evening meal when he left at 1.30, and there...

[00:29:58] Speaker 05:
You keep mentioning that.

[00:30:00] Speaker 05:
I don't see why, I mean, customers eat meals at restaurants that were prepared that morning.

[00:30:07] Speaker 05:
You know when you order a steak or something, it takes five minutes that it's been cooked and they're heating it up.

[00:30:13] Speaker 05:
So I don't, the gap, I guess, if there is one, is that Interstate didn't say, we always prepare the staff meals by noon or something like that.

[00:30:24] Speaker 02:
That's one of the gaps.

[00:30:25] Speaker 02:
And also the fact that they mention an investigation, but then put nothing.

[00:30:31] Speaker 02:
They say there's a report.

[00:30:32] Speaker 02:
The report's not there.

[00:30:33] Speaker 02:
If you look at JA 515, that's the most contemporaneous write-up of the dinner incident.

[00:30:43] Speaker 02:
And in that, it's very odd because they don't, the write-up says specify what the employee action was that gave rise to this discipline.

[00:30:56] Speaker 02:
They don't say that.

[00:30:57] Speaker 02:
They just say, oh, Robert should do a better job about food safety.

[00:31:00] Speaker 02:
Then they say that there will be a suspension.

[00:31:02] Speaker 02:
There wasn't.

[00:31:03] Speaker 02:
And then they say, if there's an investigation, fill in the details of the investigation.

[00:31:08] Speaker 02:
There's nothing filled in.

[00:31:10] Speaker 02:
on the investigation.

[00:31:11] Speaker 02:
So Mr. Peterson, the employee who ate the meal said he notified Interstate immediately this

[00:31:24] Speaker 02:
sort of vague write-up comes over a week after that.

[00:31:28] Speaker 02:
And there's also the fact that Interstate's own story of what happened in its pleadings changed.

[00:31:32] Speaker 02:
So it started in the motion to dismiss saying that he served the meal.

[00:31:38] Speaker 02:
And then they switched to he prepared it or cooked it.

[00:31:41] Speaker 02:
They seem to use those interchangeably.

[00:31:43] Speaker 02:
And then by the end, they have the Brady standard, which of course is the correct legal standard, that it doesn't really matter what happened as long as there was an honest and reasonable belief.

[00:31:52] Speaker 02:
But there is no basis for any belief at all beyond the unsupported word of the biased actor here.

[00:32:00] Speaker 02:
As for causation, we have the timeline of events set out in our brief.

[00:32:04] Speaker 02:
And I think the most interesting one is the fact that within 30 days of filing the OSHA complaint, he received his first severe disciplinary action, which was the three-day suspension.

[00:32:15] Speaker 02:
And then there's an escalating pattern in the period thereafter leading up to his termination.

[00:32:22] Speaker 04:
So to the extent we're talking about this, we're talking about his EEOC complaint, not an OSHA one.

[00:32:33] Speaker 04:
trouble at work three days after an OSHA complaint.

[00:32:37] Speaker 02:
Does that factor into our analysis of whether there's... It's hard to disentangle because they're intertwined in his allegations and in his pleadings and arguably they could be supporting

[00:32:59] Speaker 02:
So if you find the private right of action on the OSHA claim, then it gets remanded.

[00:33:06] Speaker 02:
He gets to make more of a record on that claim.

[00:33:09] Speaker 02:
There's a lot of gaps in the record on that.

[00:33:11] Speaker 02:
And then presumably would go to the jury on both.

[00:33:14] Speaker 02:
And he would be entitled to prove to the jury that one or the other are the combined effect for the real reason for his firing and not the plastic chicken.

[00:33:25] Speaker 05:
All right.

[00:33:26] Speaker 05:
Ms.

[00:33:26] Speaker 05:
Deutsch, you were appointed to represent the plaintiff, and you've done a superb job.

[00:33:32] Speaker 05:
I want to detain you for just one second, because Professor Goldblatt is usually here, and he and I have the same unfortunate past of having a terrible fall.

[00:33:42] Speaker 05:
I just want to make sure he's OK.

[00:33:44] Speaker 02:
Oh, he's doing very well, yes.

[00:33:45] Speaker 02:
He is in Richmond, because my co-fellow, Sean Hopwood,

[00:33:51] Speaker 02:
having his first argument there today in front of the Fourth Circuit.

[00:33:55] Speaker 05:
Good.

[00:33:56] Speaker 05:
Well that's good news.

[00:33:56] Speaker 05:
Thank you.

[00:33:57] Speaker 05:
Thank you.