[00:00:00] Speaker 02:
Okay, we'll go on to the next case and the last case on the oral argument calendar which is Aguilar Padilla versus Boyston equipment two four four five three six two five two seven six

[00:00:42] Speaker 02:
Yes, we're ready for your argument.

[00:00:45] Speaker 03:
May it please the court.

[00:00:46] Speaker 03:
I'm Tom Christ.

[00:00:47] Speaker 03:
I represent the defendant in this employment case.

[00:00:50] Speaker 03:
And I'd like to reserve five minutes for rebuttal, please.

[00:00:54] Speaker 02:
Sure.

[00:00:59] Speaker 03:
This case led to two appeals, one from a judgment on the merits and then one from the follow-on judgment for attorney fees.

[00:01:06] Speaker 03:
And I'd like to start with the appeal on the merits.

[00:01:11] Speaker 03:
The main issue is whether the case went to trial on a non-viable claim.

[00:01:17] Speaker 03:
The second claim, which the parties call the retaliation claim, is based on a statute that creates a right of action based on the violation of other statutes.

[00:01:30] Speaker 03:
But this claim was not pled that way.

[00:01:32] Speaker 03:
It was pled instead as a claim for a violation of a temporary administrative rule.

[00:01:39] Speaker 02:
The COVID rule.

[00:01:41] Speaker 03:
COVID rule.

[00:01:42] Speaker 02:
That's that's how we're referring to it in the briefing colloquially so I just want to make sure we're talking about the same administrative rule.

[00:01:49] Speaker 03:
We'll call it the COVID rule from now on.

[00:01:54] Speaker 03:
And our point is simply that the other statutes are actionable, but the rule is not.

[00:02:02] Speaker 03:
And when that was pointed out to the district court on multiple occasions, the retaliation claim should have been dismissed, but it wasn't.

[00:02:11] Speaker 03:
Instead, it went on to trial.

[00:02:13] Speaker 03:
And as you'll later hear, it took up the bulk of the litigation in this case.

[00:02:21] Speaker 03:
So the main issue here is, is that administrative rule a violation of it actionable?

[00:02:29] Speaker 03:
If you've handled cases involving Oregon law, you know that we are pretty strict textualists here.

[00:02:36] Speaker 03:
We construe laws according to the text, and if the text is unambiguous, nothing else.

[00:02:43] Speaker 03:
We don't look beyond the text to larger statements of purpose.

[00:02:51] Speaker 03:
We don't look behind the text to legislative history.

[00:02:54] Speaker 03:
We just look at the words used.

[00:02:58] Speaker 03:
The presumption is that the words mean what they say.

[00:03:05] Speaker 03:
To figure out what the legislature meant, we just look at what they said, and only what they said.

[00:03:12] Speaker 03:
And what the legislature said here is that an employee can bring an action for a violation of these certain laws.

[00:03:21] Speaker 03:
It didn't say that you can bring an action for a violation of an administrative rule, including this one.

[00:03:28] Speaker 02:
Well, your opposing counsel argues, as you know, so I'm really anxious to hear your response to this.

[00:03:36] Speaker 02:
that the two statutory provisions were directly implicated because OSHA's, Oregon's OSHA, the anti-retaliation provision incorporates the specific range of statutes, as you know, 654001 through .295 is the range that we're looking at.

[00:03:54] Speaker 02:
And then they call our attention to 010 and 022 and say those were specifically violated, the first being the general duty

[00:04:03] Speaker 02:
of employers to furnish a safe and healthful place of employment, and the second being the employer's obligation to comply with every requirement of OSHA, including rules pertaining to occupational health or safety.

[00:04:18] Speaker 02:
What is Boyston's response to that, please?

[00:04:23] Speaker 03:
That's not what the statute that they brought this action under says.

[00:04:29] Speaker 03:
It doesn't refer to rules promulgated pursuant to the other statutes listed here.

[00:04:35] Speaker 03:
The range of statutes listed there include procedural rights and some substantive rights, but they don't include the specific right that was the basis of this claim, which was the failure to rehire the plaintiff after he left to quarantine and then didn't.

[00:04:57] Speaker 03:
the statute that gives the right of action, and this is 654.062, subsection five, doesn't talk about rules promulgated under authority of any other statute.

[00:05:13] Speaker 03:
Other statutes do.

[00:05:16] Speaker 03:
When the legislature wants to talk about a particular law or rules promulgated under particular laws, it says so.

[00:05:25] Speaker 03:
So if you look at 654.285, it says exactly that.

[00:05:29] Speaker 03:
It refers to every regulation, rule, standard, finding, decision, and order.

[00:05:34] Speaker 03:
Those are all rules under the heading administrative rule.

[00:05:41] Speaker 03:
Made and ended under the provisions of

[00:05:43] Speaker 03:
these very same statutes.

[00:05:48] Speaker 03:
If you look to the next statute down, 654-290, it talks about promulgation by the Department of Consumer and Business Services of regulation rules and standards authorized by these same statutes.

[00:06:06] Speaker 03:
If it wanted to talk about

[00:06:10] Speaker 03:
not just the rights under those statutes, but the rights under rules promulgated pursuant to some of them, it would have used the same language here.

[00:06:21] Speaker 02:
Well, it could have.

[00:06:22] Speaker 02:
It could have.

[00:06:23] Speaker 02:
I'm just trying to figure out why this language is inadequate.

[00:06:26] Speaker 02:
Is it a rule promulgated during a pandemic?

[00:06:31] Speaker 02:
And it piggybacks, that's my word, but onto this existing statutory scheme for OSHA violence.

[00:06:39] Speaker 03:
There are a multitude of regulations and rules.

[00:06:42] Speaker 03:
They're not referenced in the statute that creates the right of action.

[00:06:46] Speaker 01:
And if the legislature wanted to... What was the statute that you say created the right to action on which they sued?

[00:06:51] Speaker 01:
I didn't get your number.

[00:06:52] Speaker 03:
Okay.

[00:06:53] Speaker 03:
If you look at 654-062... Sub 5, right?

[00:06:55] Speaker 02:
Sub 5.

[00:06:59] Speaker 03:
Actually, you start with... It's a word a little funny.

[00:07:02] Speaker 03:
If you start at subsection 6, it says that any employee who's aggrieved by a violation

[00:07:09] Speaker 03:
of subsection five has a right of action, a civil right of action.

[00:07:15] Speaker 03:
So a violation of subsection five gives you the civil action.

[00:07:20] Speaker 03:
But what it talks about in subsection five is discharging or discriminating against an employee because the employee has exercised some right as opposed to practice forbidden by certain statutes.

[00:07:34] Speaker 03:
It doesn't say certain statutes and regulations there under.

[00:07:38] Speaker 03:
And if it wanted to say that, it would have said exactly that.

[00:07:43] Speaker 03:
And in fact, it did say exactly that in Sections 1 and 2.

[00:07:47] Speaker 03:
It talks about any violation of law, statute, regulation or standard.

[00:07:57] Speaker 03:
So the legislature had two ways, textually, that it could have said what plaintiff is asking you to construe this to say.

[00:08:06] Speaker 03:
It could have added the language from subsection one and two, a specific reference to laws or rules, or it could have done what 654, 285, and 290 do, which is expressly referred to rules promulgated under those statutes.

[00:08:25] Speaker 03:
It didn't do that.

[00:08:27] Speaker 03:
And our position is that the legislature was, it meant what it said.

[00:08:34] Speaker 03:
You can bring in an action if the employer violates these particular statutes, but not if, as alleged here, you violate some administrative rule, temporary or permanent.

[00:08:49] Speaker 03:
And so the retaliation claim wasn't viable and it should not have gone to trial, even if it did.

[00:08:58] Speaker 03:
Even if it was viable, the child court gave improper instructions on it.

[00:09:06] Speaker 03:
And I'm referring in particular to instruction number 14, where the court is trying to explain the administrative rule.

[00:09:17] Speaker 03:
And it says that it gives an employee a right to return after quarantining.

[00:09:22] Speaker 03:
or excuse me, gives the employer a right to leave to quarantine, which is not exactly what the rule says.

[00:09:27] Speaker 03:
It gives you a right to return, a right that plaintiff never exercised.

[00:09:31] Speaker 03:
He never asked to return.

[00:09:33] Speaker 02:
Well, he got fired in the meantime, right?

[00:09:36] Speaker 03:
Yes.

[00:09:38] Speaker 03:
But the right is to return, so he could come back and say, I know you said you fired me, but I have a right to come back and return.

[00:09:44] Speaker 02:
But this part of the briefing is a little bit unclear to me.

[00:09:47] Speaker 02:
Is it your contention that even though he got fired, that because he didn't come back and say, I want to come to work, that this instruction was wrong?

[00:10:00] Speaker 03:
That's one reason it's wrong.

[00:10:02] Speaker 03:
It's wrong for several reasons.

[00:10:04] Speaker 03:
He didn't ask to come back, so he didn't exercise the right that was given.

[00:10:10] Speaker 02:
The second... I just want to be clear.

[00:10:12] Speaker 02:
Boydson's position is that even though he's been fired, he has to exercise the right, which you construed to be just the right to return.

[00:10:20] Speaker 03:
It's a right to return, so you need to exercise that right by asking to return, which he didn't do.

[00:10:24] Speaker 02:
Okay, I'm going to take that as a yes, and then I'll get out of your way.

[00:10:27] Speaker 02:
Go ahead.

[00:10:28] Speaker 03:
Okay.

[00:10:29] Speaker 03:
The right to return is conditioned upon quarantining, which he did not do.

[00:10:33] Speaker 03:
Okay, you have a right to return when you leave to quarantine and quarantine.

[00:10:39] Speaker 03:
He didn't do that.

[00:10:39] Speaker 03:
So if he'd asked for the right, he would not have been entitled to it.

[00:10:45] Speaker 03:
The third problem with this instruction is the third paragraph down.

[00:10:48] Speaker 03:
It says, and it seems to me that the judge came up with this out of the blue, the plaintiff had a duty to quarantine only if the employer informed him of his duty.

[00:11:01] Speaker 03:
That's not in the rule.

[00:11:04] Speaker 03:
And we, under the circumstance of this case, that never came up because the employer didn't tell him to leave and quarantine.

[00:11:11] Speaker 03:
He was ordered to quarantine by the health authority.

[00:11:14] Speaker 02:
He was ordered to, well, they recommended, but okay, he got their request.

[00:11:20] Speaker 02:
The judge in the transcript when you raised this at trial was quite insistent that he took his instructions straight from the rule.

[00:11:28] Speaker 02:
which says the worker must be directed to isolated home and away from other non-quarantined individuals.

[00:11:33] Speaker 02:
It doesn't say that employer has to tell him that.

[00:11:36] Speaker 02:
It says the worker must be directed.

[00:11:38] Speaker 02:
It's passive tense, I guess I could say.

[00:11:40] Speaker 02:
And the judge thought that meant that the employer had that obligation.

[00:11:45] Speaker 02:
But I'm wondering why this matters so much, because you argued quite, or somebody, for Boyston, forgive me, I didn't look to see the name of the lawyer, but quite aggressively,

[00:11:57] Speaker 02:
quite forcefully, that in closing that Mr. Aguilar-Predia had admitted that he knew, when he left, that he needed to quarantine.

[00:12:11] Speaker 02:
And then when I put that together with the jury's special verdict and with the instructions, it seems clear to me that they decided that he knew he had the obligation

[00:12:24] Speaker 02:
And they must have found that he did quarantine because they found that he was fired for doing so, or at least that that protected right was a substantial factor in the terminations.

[00:12:34] Speaker 03:
I don't know if you can read that into the verdict.

[00:12:37] Speaker 03:
But if you look at the instructions, what it says is if it goes on to say, if the employer doesn't tell him, and I don't see the point of the employer telling him to do that when he has been ordered.

[00:12:47] Speaker 03:
He got an order from the health authority.

[00:12:50] Speaker 03:
He sent the order on to us saying, I sent a letter on to the employer saying,

[00:12:54] Speaker 02:
He forwarded the email and there was a lot of conflicting testimony about what those two men said in that phone call.

[00:13:01] Speaker 02:
Mr. Boyston said, I fired him for this reason.

[00:13:05] Speaker 02:
Aguilar Padilla said, no, he asked for my wife's COVID test results and they disagreed and the jury heard that.

[00:13:11] Speaker 02:
The jury heard that.

[00:13:12] Speaker 02:
But Mr. Aguilar-Pedilla testified that he denied, voiced, and told him.

[00:13:19] Speaker 02:
But he testified that he knew he had a duty to quarantine.

[00:13:22] Speaker 02:
And you argued that forcefully in closing to the jury.

[00:13:25] Speaker 03:
I don't see that that avoids the erroneous instruction.

[00:13:30] Speaker 03:
Because if you go on after it says he only has to quarantine if the employer tells him to, it says as a result, your job as to the first element of this claim

[00:13:40] Speaker 03:
is to decide two issues.

[00:13:44] Speaker 03:
One, did the employer explain to Plaintiff the scope of his duty to quarantine?

[00:13:50] Speaker 03:
If yes, then you must decide, did he?

[00:13:54] Speaker 03:
Well, if the jury looked at that and said the employer didn't tell him, he may have found out some other way, but they could say the employer didn't satisfy its duty to explain to him

[00:14:05] Speaker 03:
We don't have to go on and decide whether or not he satisfied his duty to quarantine so that, in fact, if he didn't quarantine and he did not quarantine, that doesn't matter.

[00:14:17] Speaker 02:
But, sir, we look at the instructions as a whole and we're looking at the special verdict, right?

[00:14:22] Speaker 02:
And the special verdict is, as I represented, it's here in the record.

[00:14:27] Speaker 02:
The jury decided that,

[00:14:30] Speaker 02:
They must have found that he quarantined because there's only one protected right that he asserted, which is the right to quarantine and have his job back.

[00:14:39] Speaker 02:
And they found that he was fired, that his assertion of that right was a substantial factor in his termination.

[00:14:52] Speaker 02:
So I'm trying to figure out how this is harmful error.

[00:14:54] Speaker 02:
If I agree with you that the instruction was infirm, I'm trying to figure out why it was a harmful error.

[00:15:05] Speaker 03:
It's not clear whether they, as I read the verdict, I don't think it is clear that they decided that he was fired because he didn't quarantine.

[00:15:15] Speaker 03:
He was fired because he left and he didn't have to quarantine.

[00:15:20] Speaker 03:
And in fact, he did not quarantine.

[00:15:22] Speaker 03:
There's no question he did not quarantine.

[00:15:24] Speaker 02:
Well, that's because you read quarantine to mean staying at home and never going to the grocery store or never doing anything.

[00:15:28] Speaker 02:
And the jury heard that conflict, too.

[00:15:30] Speaker 02:
And they sure could have decided this case the other way.

[00:15:33] Speaker 02:
I'll grant you that.

[00:15:33] Speaker 02:
But on appeal, we have certain standards on appeal that we have to apply.

[00:15:38] Speaker 02:
And I'm trying to figure out, given the jury's special verdict, maybe we should turn to the jury's special verdict form.

[00:15:43] Speaker 02:
And you can tell me if you think I'm misreading it.

[00:15:46] Speaker 02:
But I understand that Mr. Aguilar-Pedilla only asserted one protected right.

[00:15:52] Speaker 02:
And that was this right afforded pursuant to this COVID-19 rule.

[00:15:56] Speaker 02:
And the jury found that violation of this protected right was a substantial factor in his adverse employment action.

[00:16:03] Speaker 02:
which was termination.

[00:16:05] Speaker 02:
So for me, that's the nub of it.

[00:16:07] Speaker 03:
Well, he asserts that his protected right was just the right to leave, which there's a disagreement about that.

[00:16:12] Speaker 03:
But backing up to what was before, the instruction itself describes quarantining.

[00:16:18] Speaker 03:
Isolate at home and away from other non-quarantined individuals.

[00:16:23] Speaker 03:
I don't think there's any ambiguity

[00:16:26] Speaker 03:
in that, and I don't think there can be any dispute that you are not isolating at home and away from other non-quarantined individuals if you're going to the store regularly.

[00:16:36] Speaker 02:
I don't know what the testimony was exactly about going to store regularly or what the jury found about what was going to... It's clear that there was competing inferences about this and competing testimony, and the jury, as I said, found it one way.

[00:16:49] Speaker 02:
I sure think they could have gone the other way.

[00:16:53] Speaker 02:
But you seem to be arguing that they had to go the other way, that they had to find.

[00:16:57] Speaker 03:
I don't know that I need to go that far, that they did.

[00:17:00] Speaker 03:
When I'm arguing about instructions, did the instructions enable them to find, in his favor,

[00:17:09] Speaker 03:
for reasons that are inaccurate under the law.

[00:17:11] Speaker 03:
Could they find in his favor because he left to quarantine, whether or not he did, and he had that right, which I don't think is true.

[00:17:19] Speaker 03:
I mean, our argument, that's not your right.

[00:17:22] Speaker 03:
Or they could have said, well, as the court started to instruct, in order for the plaintiff to have this right, the right to leave, Oregon law imposed on the plaintiff a corresponding duty, the duty to quarantine.

[00:17:37] Speaker 03:
But then he immediately turns right around and says, oh, actually, there is no duty unless the employer explains it to him.

[00:17:47] Speaker 02:
Well, sir, the rule comes a lot closer on the one way.

[00:17:50] Speaker 02:
The COVID-19 rule did say the worker must be directed to isolated home and away from other non-quarantined individuals.

[00:17:58] Speaker 02:
Oddly, what it doesn't say is, by the way, a duty is imposed upon the worker to actually quarantine.

[00:18:03] Speaker 02:
The court read that in, I think, quite reasonably.

[00:18:06] Speaker 02:
read in a corresponding duty for the employee.

[00:18:09] Speaker 02:
But I want to give you a chance to, what's your best shot at convincing us that the court misdirected the jury about the obligations it imposes?

[00:18:22] Speaker 03:
I think that the main problem for us is the one that somehow the duty to quarantine disappears depending upon the employer's breach of some duty that it has to explain it to them.

[00:18:34] Speaker 03:
I don't think that.

[00:18:38] Speaker 03:
it shifts the focus from the employee, did you quarantine, to the employer, what did you do?

[00:18:46] Speaker 02:
That part of your argument I understand, but here's my question.

[00:18:49] Speaker 02:
When I look again, if I agree with you that that was error, if I do, then I'm going to the special verdict form and the other instructions and I'm trying to figure out whether it was harmful, this error that you're arguing.

[00:19:03] Speaker 02:
And since he testified that he knew he had the obligation, and there was evidence that he quarantined, and there's a difference of a bandwidth about what it means to quarantine.

[00:19:13] Speaker 02:
But the jury heard of that.

[00:19:14] Speaker 02:
And then I think they certainly found that he quarantined because they must have.

[00:19:19] Speaker 02:
Because they found that his assertion of that right to quarantine was a substantial factor in his termination, sir.

[00:19:28] Speaker 03:
I think what the jury could say is you didn't quarantine.

[00:19:33] Speaker 03:
And you had no obligation to.

[00:19:39] Speaker 02:
That's the argument that you're making.

[00:19:41] Speaker 02:
I'm just trying to reconcile it with the special verdict form finding that I've got, where we know they decided that his assertion of a protected right was a substantial factor in the termination.

[00:19:52] Speaker 02:
I think he only asserted one protective right here, and that was the right to quarantine.

[00:19:59] Speaker 02:
Am I missing that?

[00:20:01] Speaker 02:
What am I missing?

[00:20:05] Speaker 03:
You're missing my two main arguments.

[00:20:08] Speaker 03:
One, you had no such right.

[00:20:10] Speaker 03:
And two, that they did not necessarily find that.

[00:20:13] Speaker 02:
But I'm... I think I've heard your arguments.

[00:20:18] Speaker 02:
It is my job to push back and try to figure out if this is a harmless error.

[00:20:22] Speaker 02:
I get it.

[00:20:22] Speaker 02:
So I'm going to ask you, at this point, you're over time significantly.

[00:20:27] Speaker 02:
So I'm going to hear from opposing counsel, and then we'll give you two more minutes when you come back on the clock.

[00:20:30] Speaker 03:
Thank you.

[00:20:32] Speaker 02:
Thank you for your patience with my questions.

[00:20:47] Speaker 00:
Good morning.

[00:20:49] Speaker 00:
Emily Teplin Fox for the plaintiff.

[00:20:52] Speaker 00:
I want to start by clarifying how ORS 654.010 and 022 fit into our claim.

[00:21:01] Speaker 00:
It is not an alternative to our assertion that the plaintiff's claim hinges on a rule violation.

[00:21:10] Speaker 00:
Rather, our point is that when a defendant violates an OSHA rule,

[00:21:17] Speaker 00:
They are violating 654-010 and 654-022.

[00:21:23] Speaker 00:
That is what we asserted in our operative complaint.

[00:21:28] Speaker 00:
We raised it at oral argument.

[00:21:30] Speaker 00:
That's always been one of the legal reasons why a worker who has been fired or otherwise discriminated against for asserting his right under an OSHA rule has a claim.

[00:21:44] Speaker 00:
under 654-062-5C.

[00:21:48] Speaker 00:
The defendant's whole argument is that they don't, we don't have a claim because there hasn't been a violation of a statute explicitly referenced in 5C.

[00:22:02] Speaker 00:
But there has been such a violation.

[00:22:05] Speaker 00:
And the violations are of 654-010 and 654-022.

[00:22:12] Speaker 00:
It's true that the GAINS framework applies to the interpretation of 654, 0625C.

[00:22:21] Speaker 00:
And here, looking at the text itself, the Oregon legislature chose very broad language.

[00:22:28] Speaker 00:
The statute, 5C, refers to any right afforded by.

[00:22:33] Speaker 00:
So a worker who's penalized for exercising any right afforded by the OCEA has stated a claim.

[00:22:41] Speaker 00:
Any right afforded by is, as the state of Oregon asserts in its amicus brief, any right that owes its existence to OCEA.

[00:22:51] Speaker 00:
That includes rights set forth by or OSHA rules.

[00:22:57] Speaker 00:
Important context here is also found in Oregon appellate law interpreting 5A and 5B.

[00:23:07] Speaker 00:
So those are very, very close statutes to 5C.

[00:23:12] Speaker 00:
And in fact, in 1973 when OCEA was enacted, what is now 5A, 5B, and 5C were all folded into one provision.

[00:23:22] Speaker 00:
You can see that 1973 articulation on page 10 of Otla's amicus brief.

[00:23:30] Speaker 00:
So that evinces a

[00:23:32] Speaker 00:
legislative intent to interpret these three provisions, 5A, B, and C, harmoniously with each other.

[00:23:39] Speaker 00:
An Oregon appellate law has been clear for decades.

[00:23:42] Speaker 00:
You do not need to articulate a violation of a specific statute to state a claim under 5A and 5B.

[00:23:51] Speaker 00:
So the Oregon Supreme Court here would similarly not require a statute, an explicit statutory violation,

[00:24:01] Speaker 00:
to state a claim under 5C.

[00:24:03] Speaker 00:
But if they did, we have articulated one.

[00:24:06] Speaker 00:
And those statutes, again, are 010 and 022.

[00:24:10] Speaker 00:
The Butler case is particularly salient in terms of how broadly the Oregon appellate courts have interpreted the rights afforded to workers under 5A and 5B, and a good indication of why the Oregon Supreme Court would adopt plaintiff's interpretation of 5C.

[00:24:32] Speaker 00:
The Whirlpool case from the Supreme Court is also very instructive along with the Kentucky Supreme Court from 2005 called Hargis.

[00:24:43] Speaker 00:
Those are also instructive cases that the Oregon Supreme Court would look at in informing its analysis.

[00:24:55] Speaker 02:
What about the instructional error argument?

[00:24:57] Speaker 02:
Both in council argues that the

[00:24:59] Speaker 02:
instruction 14 in particular was error because the court informed the jury that the right your client had didn't arise unless Boyston informed him that he had to appoint him.

[00:25:13] Speaker 00:
Yes.

[00:25:14] Speaker 00:
Thank you, Your Honor.

[00:25:15] Speaker 00:
First of all, the court well understands the standard here, which is looking at the jury instructions as a whole.

[00:25:22] Speaker 00:
And I do want to point out that

[00:25:23] Speaker 00:
The defendant did not argue that the verdict was unsupported by substantial evidence in the record.

[00:25:28] Speaker 00:
I appreciate that.

[00:25:29] Speaker 02:
But looking at- What if I think this is error?

[00:25:30] Speaker 02:
What if I think this is error?

[00:25:32] Speaker 02:
Where does it say that your client didn't have a duty to quarantine if the employer didn't tell him to quarantine?

[00:25:41] Speaker 00:
Well, the court, as you pointed out, made very clear that it was basing instruction 14 on the language of the rule itself.

[00:25:48] Speaker 00:
We actually believe this was error, instruction 14.

[00:25:52] Speaker 00:
It created too great of a burden on plaintiff, but because the jury found in plaintiff's favor, that was harmless error.

[00:26:00] Speaker 00:
But looking at the jury instructions on instruction 14, the very first paragraph, this is 1ER 27, the very first paragraph of instruction 14 accurately and correctly states the right at issue.

[00:26:16] Speaker 00:
The plaintiff had the right to take leave from work and return to his previous job duties after he had a quarantine order.

[00:26:25] Speaker 00:
That's how leave statutes work.

[00:26:29] Speaker 00:
You don't need to prove what you did during your leave.

[00:26:33] Speaker 02:
You're not answering my question.

[00:26:34] Speaker 02:
My question has to do with the employer, whether the employer was burdened by this.

[00:26:39] Speaker 02:
So I understand your position is that they shouldn't have.

[00:26:42] Speaker 02:
Your client, apparently your position is really that he didn't have a duty to quarantine.

[00:26:46] Speaker 02:
Unfortunately, we're not arguing that today.

[00:26:48] Speaker 02:
That's not before us.

[00:26:53] Speaker 02:
I just say it seems to me that the district court very reasonably read into this instruction a corresponding obligation for your client to quarantine.

[00:27:01] Speaker 02:
What that means to quarantine is a different question.

[00:27:03] Speaker 02:
And the jury heard a lot of competing evidence about what your client didn't or didn't do.

[00:27:08] Speaker 02:
So for me, that would be a much tougher hill for you to climb.

[00:27:10] Speaker 02:
But the one I think you have to climb today, if you would, is to grapple with opposing counsel's argument that it was he argues this gutted his case.

[00:27:22] Speaker 02:
because his theory was that the jury might have decided that there was no duty for your client to quarantine if they decided that Boynton Boynton didn't inform him of that.

[00:27:35] Speaker 00:
That was assuming that's true.

[00:27:37] Speaker 00:
That was harmless error.

[00:27:39] Speaker 00:
The degree to which my client quarantined what quarantining really meant whether Boynton told him to do it.

[00:27:45] Speaker 00:
All of that was heavily disputed presented to the jury.

[00:27:50] Speaker 00:
And at the end of the day, the defendant was able to turn to the jury and base its entire closing argument on its assertion that he did not quarantine well enough, and that's the reason he was fired.

[00:28:01] Speaker 02:
Didn't he also argue in the closing argument that your client had admitted that he knew he had a duty to quarantine?

[00:28:08] Speaker 00:
Yes.

[00:28:09] Speaker 00:
Yes.

[00:28:10] Speaker 00:
And the parties argued over whether, in fact, he did.

[00:28:13] Speaker 02:
I mean, did quarantine or did?

[00:28:15] Speaker 02:
What's the did in your sentence?

[00:28:17] Speaker 00:
Did quarantine.

[00:28:17] Speaker 00:
Right.

[00:28:18] Speaker 00:
Our position has always been that he did.

[00:28:19] Speaker 02:
But I appreciate that.

[00:28:22] Speaker 02:
And then sort of the other question is, what does it exactly mean to quarantine?

[00:28:26] Speaker 02:
But before you get there, do you agree?

[00:28:29] Speaker 02:
Your client testified that he knew he had a duty to quarantine?

[00:28:32] Speaker 00:
He did, yes.

[00:28:34] Speaker 00:
He also testified that he fulfilled that duty.

[00:28:36] Speaker 00:
And the jury heard all of that.

[00:28:38] Speaker 00:
They heard the contrary position.

[00:28:40] Speaker 00:
And they ruled in our client's favor.

[00:28:41] Speaker 00:
For that reason, there was no error in instruction 14.

[00:28:46] Speaker 02:
I don't know what other part of the case in chief you want to discuss.

[00:28:50] Speaker 02:
And I'm happy to hear whatever your arguments are.

[00:28:53] Speaker 02:
But I'm interested, too, in the I took up a lot of time with the opposing counsel on the fees petition argument.

[00:29:02] Speaker 00:
Yes, I'm happy to discuss the fee component of the case.

[00:29:05] Speaker 02:
Well, it's a little tricky, because I think there was an argument that you made pressed that fees might be available under Claim 2, and I understand you're no longer pressing that point.

[00:29:15] Speaker 00:
That's correct.

[00:29:16] Speaker 00:
We do not assert that Claim 2 is fee-bearing.

[00:29:19] Speaker 02:
OK, and so there's a $68,000 verdict here.

[00:29:22] Speaker 02:
I think about 60 of it was the non-economic damages.

[00:29:27] Speaker 02:
Because claims one and three yielded just very small amounts?

[00:29:31] Speaker 00:
That's correct.

[00:29:32] Speaker 02:
Okay.

[00:29:33] Speaker 02:
Those two together equal $8,000, I think.

[00:29:35] Speaker 02:
Okay, so then we have $60,000 in non-economic damages, which is the bulk of the award, and fees aren't available under claim two, and I think that's uncontested.

[00:29:45] Speaker 02:
The problem with this is I don't think you'd be entitled to fees for an award of non-economic damages if they could show that that took some

[00:29:56] Speaker 02:
In other words, the district court said we didn't hear very much testimony on damages.

[00:30:04] Speaker 02:
I think there was some testimony or a few questions to the defendant and to his spouse about, you know, how did you feel when you lost your job and it was upsetting and I'm not trying to make a lie to this.

[00:30:14] Speaker 02:
It's just I think it was very brief and I don't see in the record the kind of experts we sometimes see on non-economic damages.

[00:30:23] Speaker 02:
I didn't see

[00:30:25] Speaker 02:
anything along those lines.

[00:30:26] Speaker 02:
What am I?

[00:30:27] Speaker 02:
It just seems an anomalous because there's no fees for the 60, for count two, and that is where you got the bulk of your award.

[00:30:37] Speaker 00:
Okay, Your Honor, the limitation, the limited testimony on emotional harm damages in this case is a great reason why the court should affirm the entire fee decision, and here's why.

[00:30:52] Speaker 00:
The totality of success on claim one, which is fee-bearing, that is a federal statute integrating FLSA remedies, the totality of success on claim one hinged on successfully proving out claim two.

[00:31:09] Speaker 02:
Retaliation.

[00:31:10] Speaker 00:
Retaliation, with or without damages of any kind.

[00:31:13] Speaker 00:
And the district court here made a ton of specific factual findings on this exact point.

[00:31:21] Speaker 00:
that we would have had if there had been no Claim 2.

[00:31:23] Speaker 00:
We would have had more or less the same trial that we already had to fully prove out Claim 1, that the success of Claim 1 hinged on the success of Claim 2.

[00:31:37] Speaker 00:
Those are factual findings that are subject to clear error review on appeal.

[00:31:42] Speaker 00:
I also want to point out a couple of Ninth Circuit cases that are very relevant to this court's determination.

[00:31:51] Speaker 00:
In particular, Webb and O'Deama.

[00:31:54] Speaker 02:
So we're very familiar with that authority.

[00:31:57] Speaker 02:
Thank you.

[00:31:58] Speaker 02:
In this case, opposing counsel cites a concession.

[00:32:02] Speaker 02:
That's my word.

[00:32:05] Speaker 02:
There was a motion to dismiss, I think, that was aimed at claim two.

[00:32:10] Speaker 02:
I think it was only aimed at claim two.

[00:32:12] Speaker 02:
But that, of course, as you say, is the retaliation liability component.

[00:32:16] Speaker 02:
Is it fair that all of that should be deemed intertwined or necessary in order to litigate claim one?

[00:32:22] Speaker 00:
Yes, yes, it is fair and that again is based on the district courts Sound judgment that they were both legally and factually intertwined again We could not have proven out the entirety of our damages on claim one the fee-bearing claim without a determination of wrongful termination of

[00:32:43] Speaker 00:
under Claim 2.

[00:32:45] Speaker 00:
They were both legally and factually intertwined.

[00:32:47] Speaker 01:
Council, at 2ER 173 and 174, you billed five entries related to non-economic damages totaling $12,211.

[00:32:59] Speaker 01:
That doesn't have to do with retaliation.

[00:33:03] Speaker 01:
That has to do with economic damages, non-economic damages.

[00:33:09] Speaker 01:
Shouldn't that at least be knocked off the bill?

[00:33:13] Speaker 00:
Respectfully, Your Honor, no.

[00:33:14] Speaker 00:
That is not what the Hensley line of cases says.

[00:33:19] Speaker 00:
There does not need to be a specific parsing out of.

[00:33:24] Speaker 02:
But sometimes we parse, if we can.

[00:33:26] Speaker 02:
And I think the answer would be helpful.

[00:33:29] Speaker 02:
I would find it helpful if you could answer Judge Bay's question.

[00:33:31] Speaker 02:
If there's a line item entry that says non-economic damages, why would you be entitled to that?

[00:33:37] Speaker 00:
Well, first of all, oh, the non-economic damages for claim two.

[00:33:40] Speaker 00:
Right.

[00:33:42] Speaker 00:
I would put it this way.

[00:33:44] Speaker 00:
Just like plaintiffs can recover for a losing motion in the context of a successful claim, and the Supreme Court has made clear that what matters most is the totality of the plaintiff's success, it is not offensive to

[00:34:01] Speaker 00:
to include some hours spent on issues or things that in and of themselves, discreetly, were not fee-bearing, because you have to look at the intertwined nature of the fee-bearing and non-fee-bearing.

[00:34:15] Speaker 01:
If your argument is you have to prove claim two to prove one, in other words, you have to show that he was retaliated against, the fact that he's retaliated against is one thing, whether it grieves him and whether he has

[00:34:30] Speaker 01:
non-economic damages as a result is something quite different.

[00:34:34] Speaker 01:
You've proved that he was retaliated against, but the proof of just how grieved he was and how upset he was has nothing to do with whether he's retaliated against.

[00:34:46] Speaker 00:
Your Honour, you're correct.

[00:34:48] Speaker 00:
Whenever you have two discrete claims...

[00:34:52] Speaker 00:
Yes, there are always going to be some amount of hours that only have to do with the non-fee-bearing claim and really don't have to do.

[00:35:01] Speaker 01:
Concede that the least $12,000 should be knocked off the bill?

[00:35:05] Speaker 00:
No, Your Honor, no.

[00:35:06] Speaker 00:
That's not what the case law dictates.

[00:35:09] Speaker 01:
That's where I thought you were going.

[00:35:11] Speaker 01:
I'm sorry you didn't go that way.

[00:35:14] Speaker 00:
Well, Your Honor, I see my time is coming to an end.

[00:35:18] Speaker 02:
You can answer that.

[00:35:19] Speaker 02:
Is there anything further you want to say on this point?

[00:35:21] Speaker 00:
Yes, the case law reflects many such cases like this one, including Webb and O'Deama, where you could find line items that are just very specific to the non-fee-bearing claim.

[00:35:34] Speaker 00:
And what the Supreme Court has dictated is that you take a step back, you look at the nature of whether these claims are related, and you take a further step back and look at the success, the totality of the success.

[00:35:47] Speaker 02:
I think that's what saves you on the motion to dismiss, but Judge Bay is asking a different point.

[00:35:53] Speaker 00:
The way I read the Ninth Circuit case law on these mixed fee decisions where you have a non-fee-bearing claim and a successful fee-bearing claim, the case law does not require, and in fact it requires the opposite.

[00:36:09] Speaker 00:
directs courts not to parse out line by line every item.

[00:36:13] Speaker 00:
Just like you don't pull fees for unsuccessful motions or unsuccessful discovery disputes.

[00:36:22] Speaker 00:
This is like that.

[00:36:23] Speaker 00:
Thank you.

[00:36:23] Speaker 02:
Thank you for your response and for your advocacy.

[00:36:29] Speaker 02:
Let's get the clock straightened out so you know how much time you have first.

[00:36:31] Speaker 02:
Just one second.

[00:36:35] Speaker 03:
Let me begin where this just ended with the fee dispute.

[00:36:38] Speaker 03:
Claims raise facts and legal issues.

[00:36:43] Speaker 03:
Two claims can have the same fact.

[00:36:46] Speaker 03:
So claim one and claim two had one similar fact.

[00:36:50] Speaker 03:
Was plaintiff retaliated against?

[00:36:52] Speaker 03:
In other words, was he fired because he left the quarantine or was he fired because he left quarantine and didn't quarantine?

[00:36:59] Speaker 03:
But the legal issue, is claim two viable, what I spent my opening talking about, has no bearing whatsoever on claim one.

[00:37:08] Speaker 03:
So the motion to dismiss didn't assume that he was retaliated against.

[00:37:13] Speaker 03:
It's a motion to dismiss on the law.

[00:37:15] Speaker 03:
It was all about the viability of claim two.

[00:37:18] Speaker 03:
It has nothing to do with claim one.

[00:37:21] Speaker 03:
The motion for summary judgment on claim two

[00:37:26] Speaker 03:
The law part of it had nothing to do with Claim 1.

[00:37:28] Speaker 03:
The second motion to dismiss on Claim 2 had nothing to do with Claim 1.

[00:37:33] Speaker 03:
The motion to certify the Claim 2 issue to the Oregon Supreme Court had nothing to do with Claim 1.

[00:37:39] Speaker 03:
And yet, in most of the instructions and the argument in trial, it was all about the viability of Claim 2.

[00:37:45] Speaker 03:
It has nothing to do with Claim 1, and yet the trial judge said everything you did in this case

[00:37:51] Speaker 03:
It all goes into the fees on claim one.

[00:37:54] Speaker 03:
That can't be right.

[00:37:55] Speaker 03:
It should have been apportioned.

[00:37:57] Speaker 03:
The legal arguments on claim two, which were the bulk of this case, should be excluded from any fee they get.

[00:38:04] Speaker 03:
If I can go back to follow up your questions about the verdict form.

[00:38:08] Speaker 03:
The first question, do you find that plaintiff exercised a protected right as described in instruction 14?

[00:38:16] Speaker 03:
Okay, so what are the rights, what is the right described in instruction 14?

[00:38:24] Speaker 03:
We think it was erroneous in two respects.

[00:38:26] Speaker 03:
It says you have a right to leave, which instead of a right to return, but on top of that, your right is not dependent on actually quarantining if the employer doesn't explain it to you.

[00:38:39] Speaker 03:
That's not in any law.

[00:38:42] Speaker 03:
And so the jury could have looked at these facts and said, we don't think he quarantined.

[00:38:48] Speaker 03:
That's a factual dispute.

[00:38:49] Speaker 03:
But they could find, we don't think he quarantined, but he still had a right to leave and not quarantine.

[00:38:57] Speaker 03:
if the employer didn't give proper instructions.

[00:39:00] Speaker 03:
That's the erroneous instruction that enabled them, perhaps, to say yes to the first question in the verdict form.

[00:39:08] Speaker 03:
And if they said that, that's harmful.

[00:39:13] Speaker 03:
I think I'm well over.

[00:39:15] Speaker 02:
You are, but it was helpful advocacy, and I appreciate it.

[00:39:19] Speaker 02:
We always appreciate vigorous advocacy and excellent briefing, and we certainly got that in this case.

[00:39:23] Speaker 02:
Thank you.

[00:39:24] Speaker 02:
Thank you both.

[00:39:24] Speaker 02:
Thank you all.

[00:39:25] Speaker 02:
We'll take that matter under advisement and we'll stand in recess.