[00:00:00] Speaker 00:
May it please the court?

[00:00:01] Speaker 00:
This is Matthew Rosten for the appellant, Dennis Vincentini.

[00:00:06] Speaker 00:
I would like to start off by saying that appellant has hit all of the marks of factors used to demonstrate the minimal whistleblower standard under California Labor Code section 1102.5.

[00:00:23] Speaker 00:
And even if some of the factors are removed, which the district court erroneously did,

[00:00:28] Speaker 00:
There is still more than enough here for there to be a tribal issue of fact whether he meets this case.

[00:00:34] Speaker 00:
I want to start off first talking about temporal proximity and I want to just highlight something that we should have highlighted more in our summary judgment papers as well as the opening brief, but we did highlight in the reply brief.

[00:00:49] Speaker 00:
Which is, if you see the letter from the dated August 5th, 2020, informing a Mr. snow and Mr. Vincent, see me that there was not going to be any sort of enforcement action for the covert related to cases.

[00:01:05] Speaker 00:
It says in that letter, and that is on volume to.

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80 in the record that they did not even investigate this claim until July 28th, 2020, meaning that Tassie would not have been aware of this complaint until less than a week before they pulled Mr. Vincent Cini out of service.

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So what we're talking about here is square temporal proximity, less than a week, instantaneous at the time that they give a formal letter saying that they are

[00:01:38] Speaker 00:
not going to investigate this further.

[00:01:40] Speaker 00:
And when Mr. Vincent Sini was taken out of service, this is something that the court certainly didn't entertain.

[00:01:46] Speaker 00:
This is something that the respondent is certainly dodging in their brief and saying that it has to be March when he made the complaint, which doesn't make any sense whatsoever, since Tassie wasn't even aware of it until months later.

[00:02:01] Speaker 03:
So sorry.

[00:02:03] Speaker 03:
I have questions about step 2 of the analysis.

[00:02:05] Speaker 03:
We don't confer in advance, so I don't know if my colleagues might have questions about step 1 also, but I'd just like to assume for a moment that you do win on the argument you're trying to make about step 1, and then let's talk about step 2.

[00:02:18] Speaker 03:
It seems like part of your argument at step 2 is that

[00:02:23] Speaker 03:
The defendant should have had some reason to not believe the data.

[00:02:29] Speaker 03:
So the data that show these shutoffs, you're arguing that even though it looked like there were shutoffs, like your client hadn't really caused these shutoffs and the data were just wrong.

[00:02:39] Speaker 03:
What is your best evidence of that?

[00:02:42] Speaker 00:
Well, I think the best evidence of that is their own admission and Mr. Freeman stated in his deposition that they didn't even understand why anybody would do an ABV cutoff and why anybody would do that into a station.

[00:02:58] Speaker 00:
They agree that it makes no sense.

[00:03:01] Speaker 03:
Well saying it makes no sense could just be your client did something that was very, very egregious and didn't make sense though.

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So I'm not sure how that helps you.

[00:03:09] Speaker 03:
Is there anything else that you have that shows that they shouldn't have believed the data that looked like there were cutoffs?

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Yes, I would also then go to the fact that based on Mr. Beauchamp's declaration, and this is something that I don't even think is contested as to whether or not it's expert opinion or not, stated that

[00:03:29] Speaker 00:
they were well aware that these PTC records are not reliable, that they can have false positives and can have wireless issues, and this was known.

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So I think that is compelling evidence that they had reason to believe that this was not accurate.

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And the only thing that they relied upon, and this is undisputed, in reaching the decision that he actually did this willfully,

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was the PTC records and the PTC records only, which even if you were to accept that they're valid, still doesn't even get you to the conclusion that he did this willfully as opposed to inadvertently.

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And the fact that they never even asked Mr. Vincent Sini about whether he did it shows that they just jumped to this conclusion based on these weak amount of evidence that they know is not reliable.

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And they just went straight to the throat to take him out.

[00:04:25] Speaker 00:
of the company, which was again inconsistent with what they did with his railroad license, where they did not even suspend him a single day.

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So it's very hard to, I guess, put this all together as to why this is a justified sound decision.

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And again, this is something that the respondent has to prove by clear and convincing evidence, which is an extremely high standard.

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And I think given all of this,

[00:04:55] Speaker 00:
there's certainly a tribal issue of fact for a jury to see whether or not what we're saying is a very loose conclusion based on loose evidence.

[00:05:06] Speaker 03:
Can I ask you about another piece of evidence specifically?

[00:05:09] Speaker 03:
So in your client's declaration, paragraph 23, he says,

[00:05:14] Speaker 03:
Mr. Stogno informed me that he took part in a conference call with Mr. Griff and Mr. Cold and was told by Mr. Cold in the conference call that the ABV sometimes cuts out on its own.

[00:05:26] Speaker 03:
Do you know when that happened?

[00:05:30] Speaker 03:
Is that evidence that the company would have known that sometimes the data were not really indicating intentional cutoffs at the time in question?

[00:05:41] Speaker 00:
That too, yes.

[00:05:43] Speaker 00:
That's just another layer of our argument as to why a jury should be considering this evidence.

[00:05:48] Speaker 03:
But do we know, my question is, do we know when this, I mean, because if they had data problems a year earlier, maybe they would have fixed them by now.

[00:05:54] Speaker 03:
What do we know about this conversation?

[00:05:56] Speaker 00:
Well, we do not have an exact date as to when it occurred.

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I'll acknowledge that.

[00:06:02] Speaker 00:
But what we do have is we do have a good idea as to when that would have been because they did not start the PTC program until it was October 2019.

[00:06:12] Speaker 03:
Is ABV part of the PTC or those two?

[00:06:18] Speaker 03:
I thought there was a different kinds of violations.

[00:06:21] Speaker 00:
Those are two different things.

[00:06:23] Speaker 00:
And that's another reason why we're saying that this is not reliable, because these are PTC records which are meant to show whether the PTC is working.

[00:06:33] Speaker 00:
But with these PTC records, it also can show whether or not the other things are working as well, which is the ABV.

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PTC is just these records are just meant to be used for the PTC.

[00:06:51] Speaker 00:
So what they did is they use these records that are specifically for the PTC saw something that came on with an ABV and said, oh, aha, this is this is a cut out to where we're going to discipline him for this and have an investigation where he can't have any witnesses to explain himself.

[00:07:07] Speaker 00:
And and that's how the ABV cut out.

[00:07:10] Speaker 00:
But there's other ways to see whether there is an ABV.

[00:07:13] Speaker 00:
One is whether you

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can have a camera and see them cutting it out.

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Two, whether there are black box records, whether it's cut out.

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And I apologize, I don't have the site, but there was an email in the record where Mr. Cold acknowledges that the black box did not show an ABV cutout and that there was no footage of Mr. Vincent Cini available.

[00:07:39] Speaker 00:
To do that, again, highlighting that the only basis for this conclusion

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that not only that he cut out the ABV, but that he did it willfully is these PTC records, which are just meant to be used for PTC and are a new type of electronic record for a system that is new and hadn't even been certified at the time of

[00:08:04] Speaker 00:
of this alleged violations.

[00:08:07] Speaker 02:
Does your argument depend on the possibility that this was a glitch in the system or that he didn't do it intentionally?

[00:08:16] Speaker 02:
I mean, in other words, suppose that it were established that he had intentionally disabled the PTC on the five times and the ABV on the one time.

[00:08:25] Speaker 02:
What would we do then?

[00:08:27] Speaker 00:
Well, I think that I think that it would still be an issue, a tribal issue of fact for the jury in that situation to assess all of the factors.

[00:08:34] Speaker 00:
But yeah, I will concede that if there was sound evidence that he cut it out and he did it intentionally, which there is no sound evidence, then yes, it would be a much more difficult case for Mr. Vincentini in this case.

[00:08:46] Speaker 00:
But I would still say that given all the factors of this case, the dead on temporal proximity

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The fact that nobody else had been terminated or disciplined for any of these types of violations.

[00:08:57] Speaker 00:
The fact that there was already an established acknowledgement that nobody would be disciplined for PTC violations.

[00:09:05] Speaker 00:
The fact that there was animosity demonstrated through the general manager.

[00:09:09] Speaker 03:
Can I ask you about the lack of discipline of anyone else?

[00:09:15] Speaker 03:
This case is sort of odd because I think both sides are saying we don't really have a comparator and it's the other side's problem that we don't.

[00:09:22] Speaker 03:
So how do you, if we don't know that anyone around this time period did the same, it was accused of doing this or was found to have done the same thing that your client is accused of, then how is it meaningful that no one else was disciplined for it around that same time?

[00:09:39] Speaker 03:
It's kind of just a nothing, isn't it?

[00:09:42] Speaker 00:
Well, I would say two things to that.

[00:09:45] Speaker 00:
I would say one, there is evidence that other people did these similar violations because Mr. Beauchamp said in his declaration that he did find other engineers that had cut out the PTC and they were coaching councils.

[00:09:57] Speaker 00:
But let's just go with that hypothetical.

[00:09:59] Speaker 03:
Can you point to anything, though, where it's both intentional and not approved in advance?

[00:10:04] Speaker 03:
I'm not sure he really does point to anyone who is

[00:10:07] Speaker 03:
found to have intentionally without permission done what allegedly your client did.

[00:10:14] Speaker 03:
I know you think your client didn't do it either, but is there anyone who was found to have done those things, all of them together?

[00:10:19] Speaker 00:
I'll go back and I'll check and I would like to reserve some time for rebuttal.

[00:10:27] Speaker 00:
And I'll point to the declaration.

[00:10:28] Speaker 02:
I thought mr. Beauchamp did say that there were he I'm looking at er 84 I routinely caught locomotive engineers not complying with PTEC rules including Intentionally cutting out the PTEC system without authorization.

[00:10:42] Speaker 00:
You found it for me then your honor.

[00:10:44] Speaker 00:
I guess when though Well, I that that goes to the same point that I'm saying is this is still a limited

[00:10:52] Speaker 00:
time period that we're talking about because this was a new system that wasn't even starting to be used until late 2019.

[00:11:00] Speaker 00:
And his violations occurred, I think it was during the summer of 2020.

[00:11:05] Speaker 00:
So the question is, let's just say at the absolute most were seven or eight months removed.

[00:11:10] Speaker 00:
At the absolute most.

[00:11:12] Speaker 00:
And I don't see why that cannot be considered.

[00:11:16] Speaker 00:
Respondent hasn't given any authority as to why that sort of delay cannot be

[00:11:21] Speaker 03:
Considered so I mean what I understood the district courts sort of I think it's a little unclear what the district courts evidentiary basis was because it's sort of a long list of things but and unclear which one was being used, but I understood the district court to have a concern that Beauchamp because he only had the job until December of 2019 maybe didn't really know everything by the summer of 2020 he had a different job, but not the same job of supervisor and then also

[00:11:50] Speaker 03:
as you get closer to when the PTC deadline is, maybe they start being stricter or something.

[00:11:56] Speaker 03:
I mean, there are these sort of things that could have changed over time.

[00:12:00] Speaker 03:
But what is your answer to that?

[00:12:01] Speaker 03:
Like, why should Beauchamp still be taken into account?

[00:12:04] Speaker 00:
Because as indicated in the briefings, he

[00:12:07] Speaker 00:
declared in his declaration that he was still consulting with management about these issues, even though he was an engineer at capacity.

[00:12:14] Speaker 00:
He was still aware of the issues with the PTC.

[00:12:16] Speaker 00:
So he was still involved.

[00:12:17] Speaker 00:
The only difference was he didn't have an exact manager title.

[00:12:21] Speaker 00:
So he did lay a foundation for that.

[00:12:23] Speaker 00:
And I think that's something that a jury needs to assess and that we can't just discount.

[00:12:29] Speaker 03:
So when he says, I think he says something like, I was involved in PTC issues, or something sort of vague like that.

[00:12:37] Speaker 03:
Do we know that that means, I mean, do we need to infer that that means that those issues were sort of the kinds of violations we're talking about here as opposed to programming the computer or doing some other thing about, I mean, it's pretty vague what his role was once he wasn't a supervisor anymore after December 2019.

[00:12:55] Speaker 03:
At this stage at summary judgment, is that your problem for not having put in more detail or is it their problem because we take the inference in your favor?

[00:13:03] Speaker 00:
Well, I think the interest inferences need to be drawn in appellant's favor, and that is certainly one that should be.

[00:13:09] Speaker 00:
And he did say that he was aware of the issues that were going on with PTC and was still advising them.

[00:13:17] Speaker 00:
So I don't see why that is not enough to create at least a foundation for summary judgment level.

[00:13:25] Speaker 02:
I don't want to cut into your – I can give extra time as needed.

[00:13:31] Speaker 02:
So in your complaint in state court, you allege that Transit America Services is a Missouri corporation with its principal place of business in California.

[00:13:42] Speaker 02:
The notice of removal says it's a Missouri corporation and its principal place of business is Missouri.

[00:13:49] Speaker 02:
I didn't see that you would challenge the removal.

[00:13:52] Speaker 02:
So do you agree that the principal place of business is Missouri?

[00:13:57] Speaker 00:
I don't agree with that.

[00:13:58] Speaker 00:
I'm not really prepared to answer that right now.

[00:14:02] Speaker 00:
But my understanding is that their principal place of business at the time was in California.

[00:14:08] Speaker 00:
But this was brought in California.

[00:14:12] Speaker 03:
But why would there be diversity jurisdiction then?

[00:14:14] Speaker 03:
Why would we be in federal court?

[00:14:20] Speaker 00:
That's a good question.

[00:14:21] Speaker 00:
I wasn't expecting that one, but that is something I did not consider, and I guess when they gave that statement in their declaration, I accepted it and decided not to challenge it.

[00:14:36] Speaker 02:
Okay, so we have their declaration in the Notice of Removal, and you have not put in anything to challenge that?

[00:14:41] Speaker 00:
I have not challenged that, so that's the answer to that.

[00:14:44] Speaker 00:
Okay, thanks.

[00:14:46] Speaker 01:
We'll still give you three minutes for rebuttal, so let's hear from the other side and then and then we'll talk to you again Good morning your honors May it please the court Vince Castillo here for the appellee transit America services the district court correctly granted that

[00:15:09] Speaker 01:
Tassie's motion for summary judgment, because even assuming that Mr. Vincent Sini engaged in protected activity, no reasonable jury could find that any protected activity contributed to his termination.

[00:15:22] Speaker 01:
And the record independently establishes by clearing convincing evidence that Tassie would have terminated

[00:15:28] Speaker 01:
Mr. Vincent Sini, regardless of any protected activity due to the intervening six events, five disabling five events that disabled the PTC and the one event that disabled the ABV.

[00:15:44] Speaker 01:
One of the things that I heard from the appellant is that there's no evidence that the PTC was cut out.

[00:15:51] Speaker 01:
And I hope I'm not misquoting him.

[00:15:52] Speaker 01:
I think that's what he said in his presentation.

[00:15:56] Speaker 01:
There is.

[00:15:57] Speaker 01:
There's an admission by Mr. Vincent Cini that he cut out the PTC.

[00:16:02] Speaker 03:
One time.

[00:16:02] Speaker 01:
One time.

[00:16:05] Speaker 01:
Then if you accept that Mr. Beauchamp's declaration is admissible, he says that there's evidence that

[00:16:14] Speaker 01:
the four other cutouts were not software glitches.

[00:16:19] Speaker 01:
So he acknowledges that those four cutouts were disabled at the time.

[00:16:26] Speaker 01:
At deposition, when I asked Mr. Vincentini to talk about the four other cutouts along with the ABV,

[00:16:37] Speaker 01:
His response was, I don't recall.

[00:16:40] Speaker 01:
I then followed up and I asked him, is it that you don't recall or are you denying that you did this?

[00:16:47] Speaker 01:
The response was always, I don't recall.

[00:16:51] Speaker 01:
And stating that you don't recall is not sufficient to create a tribal issue.

[00:16:57] Speaker 01:
It's ostensibly, that point is established.

[00:17:00] Speaker 03:
So I think part of what you're trying to say is we had reason to think that

[00:17:06] Speaker 03:
He cut off the PTC five times.

[00:17:09] Speaker 03:
And I think you want there to be an inference that even though you can't point to anyone else you fired for doing that, that this is obviously so terrible that it justifies firing no matter what.

[00:17:19] Speaker 03:
And so I guess what I'm wondering about is how you deal with the other pieces of evidence in the record that.

[00:17:25] Speaker 03:
Maybe this wasn't such a big deal.

[00:17:27] Speaker 03:
So I'm looking at Beauchamp declaration paragraph nine and Beauchamp declaration paragraph 14.

[00:17:32] Speaker 03:
Nine talks about how engineers were allowed to contact dispatch to obtain authority to cut out the PTC system so that the train could be operated without the PTC.

[00:17:42] Speaker 03:
This happened frequently.

[00:17:43] Speaker 03:
If that's true, I understand that you're saying he didn't have authorization, but it does undermine the idea that operating without the PTC on wasn't such a bad thing.

[00:17:53] Speaker 03:
And if that's true, then why is it so bad that he cut it off?

[00:17:57] Speaker 01:
Well again, I don't I don't know what the circumstances were that Mr. Beauchamp is referring to because he doesn't explain what the circumstances were when he says that the other engineers who sought authorization to cut out the PTC for instance I don't know if it happened in a yard.

[00:18:15] Speaker 03:
I don't I don't know I don't have any details take the inferences in plaintiffs favor at this point I mean you could have deposed mr. Beauchamp and asked him all those things and boxed him into some other kind of circumstance But if you didn't then don't we take that as probably the train was running?

[00:18:31] Speaker 01:
So on the issue of deposing him

[00:18:34] Speaker 01:
He was disclosed for the first time, his opinions were disclosed for the first time on the same day of the deadline to have rebuttal expert disclosures.

[00:18:46] Speaker 01:
So from that standpoint, we were effectively precluded from consulting with an expert to go and have an expert at least- But I don't think this is a paragraph that's expert testimony.

[00:18:58] Speaker 03:
I don't even think you say it is.

[00:18:59] Speaker 03:
Paragraph nine, this is just him talking about what he did at the company.

[00:19:03] Speaker 01:
Sure, but what he did at the company, this is predating the incidents by seven, eight months because he was last involved as a PTC foreman in December of 2019 as the court observed earlier.

[00:19:22] Speaker 01:
When he went back to being an engineer, that's all he was doing was being an engineer.

[00:19:28] Speaker 01:
He's never once attested to the fact that he was responsible for managing anyone, consulting with the other engineers.

[00:19:35] Speaker 03:
I find it very puzzling what we do about this in this case because there are vague, we have uncertainty as to time, uncertainty as to what Mr. Beauchamp would have known between December and August.

[00:19:50] Speaker 03:
Maybe that's your problem for not having put in more information about those things, because we generally take the inferences in favor of the non-moving party.

[00:19:58] Speaker 03:
And the inferences would seem to be he says he was still involved in the PTC.

[00:20:03] Speaker 03:
Maybe we infer that he still would have known these things.

[00:20:06] Speaker 03:
Perhaps you could have shown that he wouldn't, but maybe you didn't hear.

[00:20:09] Speaker 03:
We have no information about whether he would have known or not.

[00:20:13] Speaker 01:
Your honor, in responding to your questions, I'm certainly not conceding that Mr. Beauchamp's declaration is admissible.

[00:20:20] Speaker 01:
I mean, our objections remain that none of this.

[00:20:23] Speaker 03:
I don't think you had an objection to paragraph nine.

[00:20:25] Speaker 03:
Can you point to anywhere where you objected to paragraph nine of Beauchamp?

[00:20:28] Speaker 01:
Well, what we did was we objected to the entirety of the declaration.

[00:20:33] Speaker 03:
I thought just the paragraphs that you said were expert testimony.

[00:20:36] Speaker 03:
No, maybe correct me if I'm wrong.

[00:20:38] Speaker 01:
Uh, we objected to the entirety of the declaration because it doesn't, this was an, uh, he was disclosed as an expert and he didn't produce a report.

[00:20:49] Speaker 03:
And I believe it's rule 37 that if, uh, he doesn't produce a report, certain paragraphs, I thought it was like 15 to 17 where what you said were expert testimony.

[00:20:59] Speaker 03:
And that's what this whole dispute was about.

[00:21:01] Speaker 03:
He should have had a report.

[00:21:02] Speaker 03:
I didn't think you objected to paragraph nine on that basis.

[00:21:09] Speaker 01:
Point me to where if you did I believe you're correct that I didn't specifically Single out paragraph 9, I think it's just 15 to 17 15 to 17 I'll take your word for it But we did have the objection to the overall declaration based on the fact that where Sure, let me find the reference in the in the order

[00:21:42] Speaker 03:
I mean I'm looking at page er 37 to er 38 which are your objections and it's to 15 to 17 of Beauchamp.

[00:21:54] Speaker 03:
Maybe there's somewhere else but.

[00:21:56] Speaker 01:
So what I'm and I apologize.

[00:21:59] Speaker 01:
I'm looking at the courts, the district courts order where the court.

[00:22:04] Speaker 01:
acknowledges that we objected to the entirety of the declaration.

[00:22:10] Speaker 03:
I think that might be a mistake though, and we're here to figure out whether the district court made a mistake, right?

[00:22:17] Speaker 01:
I'm confident, and I'll ask my colleague if he finds a citation to where we objected to the entirety of the declaration, but that's my recollection.

[00:22:29] Speaker 01:
But I certainly don't want to lead you astray.

[00:22:30] Speaker 03:
Well, what would be the objection to paragraph 9?

[00:22:36] Speaker 03:
Because paragraph nine is saying, prior to enduring August 2020, engineers were allowed to contact dispatch to obtain authority to cut out the PTC system so that the train could be operated without PTC.

[00:22:47] Speaker 03:
This happened frequently.

[00:22:49] Speaker 03:
He was working there.

[00:22:50] Speaker 03:
He was an engineer.

[00:22:51] Speaker 03:
This seems to be personal knowledge.

[00:22:55] Speaker 03:
What would be the objection?

[00:22:57] Speaker 01:
Well, let me respond this way, that he's talking about a PTC cutout.

[00:23:04] Speaker 01:
He doesn't mention anything about a PTC cutout and an ABV cutout.

[00:23:10] Speaker 01:
So there's no comparator there, right?

[00:23:12] Speaker 01:
Because cutting out the breaking system, there's no mention of any other comparator evidence about

[00:23:20] Speaker 01:
a cutout of the PTC and the ABV.

[00:23:24] Speaker 01:
There's no mention about the regularity of it.

[00:23:27] Speaker 01:
We have five instances.

[00:23:29] Speaker 03:
So on the ABV, we have Mr. Vincenzini's declaration that, sorry, the plaintiff, however you say his name exactly, and that is paragraph 23 at ER 94.

[00:23:39] Speaker 03:
Mr. Stagno informed me that he took part in a conference call with Mr. Griff and Mr. Cold and was told by Mr. Cold in the conference call that the ABV sometimes cuts out on its own.

[00:23:49] Speaker 03:
And then there was an allegation that Mr. Stogno had cut out the ABV and he was not charged with any discipline.

[00:23:57] Speaker 03:
Putting aside whether Stogno is exactly the same, if the ABV sometimes cuts out on its own, and I don't think there was an objection to that paragraph either, why between those two things do we not have a fact dispute about how much it mattered that the ABV and the PTC were cut out?

[00:24:16] Speaker 01:
Part of the reason is, as the court pointed out, there's no evidence of when this occurred.

[00:24:23] Speaker 03:
Right, but why isn't that your problem if we're taking inferences in the plaintiff's favor?

[00:24:27] Speaker 03:
I mean, I do think we're puzzled by who is right here, because if this was talking about something a long time ago, I think you have a good argument that it shouldn't matter.

[00:24:36] Speaker 03:
But you didn't put in any evidence that this conversation happened a long time ago, and some of the people in this conversation were your people.

[00:24:44] Speaker 01:
But it's not Tassie's burden to present evidence on that topic.

[00:24:48] Speaker 03:
Well, it is on step two.

[00:24:50] Speaker 03:
It's your affirmative defense.

[00:24:52] Speaker 03:
It is your burden.

[00:24:54] Speaker 01:
But by clear and convincing evidence, right?

[00:24:57] Speaker 01:
Well, it's our position that there's clear and convincing evidence that he was terminated because this was unprecedented, right?

[00:25:07] Speaker 01:
There's no comparator who intentionally disabled without authorization

[00:25:12] Speaker 01:
the PC, the PTC on five occasions and also did the same to the ABV.

[00:25:17] Speaker 02:
There's simply no comparative.

[00:25:19] Speaker 02:
Sure.

[00:25:19] Speaker 02:
But, but I mean, I guess this is sort of a more fundamental question.

[00:25:22] Speaker 02:
I guess under, under Lawson, um, you know, even if we disregard the, the Beauchamp evidence and the evidence from Mr. Stagno, um, you have the burden of proving by clear and convincing evidence that the action would have occurred, you know, without, uh, without the protected activity.

[00:25:41] Speaker 02:
And at summary judgment, you have to show that there's no genuine dispute of fact that you could establish by clear and convincing evidence.

[00:25:49] Speaker 02:
Those two standards piled on top of each other.

[00:25:52] Speaker 02:
And if it's never happened before, and in the absence of some, you haven't pointed to some written policy that says anyone who does this will be fired, so how, it seems like

[00:26:08] Speaker 02:
It's a hard burden to meet and the California Supreme Court said that in Lawson right in in Lawson The objection was made you know, nobody's ever gonna get summary judgment on this standard and they said well maybe But how are you able to overcome that standard here?

[00:26:25] Speaker 01:
There's a lot in that question, but yeah, I apologize I want to make sure that I

[00:26:35] Speaker 01:
May you clarify your question, please?

[00:26:37] Speaker 02:
The question is just like, it is your burden to show, by clear and convincing evidence, that this would have happened anyway.

[00:26:44] Speaker 02:
And given that nothing like it had ever happened before, how are you able to carry that burden?

[00:26:53] Speaker 02:
And in the absence of some written policy that says, this is the action we will take if you do these things.

[00:26:58] Speaker 01:
So we have, I believe in our brief, we listed out

[00:27:03] Speaker 01:
eight or nine, possibly ten different rules that were violated.

[00:27:08] Speaker 01:
I believe in one of those rules, I'm just going off memory, I believe in one of those rules that stated that a violation of that particular rule could be grounds for termination.

[00:27:17] Speaker 02:
Could be, right?

[00:27:18] Speaker 02:
But I don't think anyone disputes that he could be fired for this.

[00:27:22] Speaker 02:
But you have to show that you would in fact have fired him even without the retaliatory motive.

[00:27:28] Speaker 01:
So again, because this was unprecedented.

[00:27:33] Speaker 01:
the totality of the circumstances, dealing with these five PTC cutouts, the ABV cutout, that is the evidence that alone, it's so egregious.

[00:27:47] Speaker 03:
But so this is what my questions have been getting at.

[00:27:50] Speaker 03:
Maybe it's not so egregious.

[00:27:51] Speaker 03:
I mean, it seems like there's some testimony that PTC cutouts happened with permission, and so maybe it's not so dangerous.

[00:28:00] Speaker 03:
And then this ABV thing,

[00:28:02] Speaker 03:
There seems to be testimony that sometimes it cut out on its own and it wasn't his fault.

[00:28:06] Speaker 03:
So between those and then also, I mean, Judge Miller's question is getting at, if you had a written policy that said someone would always be fired, that would be one thing.

[00:28:15] Speaker 03:
But in fact, we have testimony saying the policy was the opposite.

[00:28:18] Speaker 03:
They would usually get counseling because they were trying to train them how to deal with this new system.

[00:28:23] Speaker 03:
So with all of those things, how does that not undermine the idea that clear and convincing evidence is no matter what, everyone would be fired for this?

[00:28:32] Speaker 01:
Well, so I don't think you can have that there's a policy.

[00:28:36] Speaker 01:
I'm not aware of any railroad that has a policy that lays out that if this event happens, there's going to result in termination.

[00:28:44] Speaker 01:
You always evaluate the incidents for what they are individually, because each one of these is a unique situation.

[00:28:55] Speaker 01:
So I can't tell you that there's a specific policy that's written there that in the event that there are five PTC cutouts and one ABV cutout, and these are done without authorization, that that's going to give rise to a termination.

[00:29:10] Speaker 01:
Yeah, I'm not aware of any written policy to that effect.

[00:29:13] Speaker 01:
But if these aren't the events to justify a termination,

[00:29:24] Speaker 01:
I don't know what could justify a termination on the train handling side when you disable these safety features.

[00:29:33] Speaker 01:
Disabling the ABV a quarter mile from the San Francisco depot, the evidence is from Mr. Freeman that the engineer doesn't know if he was able to reengage

[00:29:47] Speaker 01:
the breaking system as you're coming into the depot, right?

[00:29:50] Speaker 03:
It seems very serious if he really did it intentionally and it really happened and the data weren't messed up.

[00:29:57] Speaker 03:
But there's at least some testimony that Mr. Cold said he knows that the ABV sometimes cuts out on its own.

[00:30:04] Speaker 03:
So why isn't that evidence that maybe this ABV thing wasn't the plaintiff's fault?

[00:30:13] Speaker 01:
Your Honor,

[00:30:20] Speaker 01:
With respect to the AVV, I mean, we're taking a self-serving statement that was made by Mr. Vincent Sini, right?

[00:30:29] Speaker 03:
Well, it's Mr. Vincent Sini saying that Mr. Stogno told him it is hearsay.

[00:30:32] Speaker 03:
But usually at summary judgment, you can have hearsay.

[00:30:36] Speaker 03:
And I mean, you have Mr. Cold as your employee, I believe.

[00:30:39] Speaker 03:
So you could have had a declaration from Mr. Cold saying this conference call never happened.

[00:30:44] Speaker 03:
It's not true.

[00:30:45] Speaker 03:
But I don't think you have a declaration like that, do you?

[00:30:48] Speaker 01:
Mr. Cold is with the FRA and when we attempted, so his job after Tassie was with the FRA, when we attempted to get a declaration from him, there was a government lawyer who told us that a declaration could not be obtained from him, even though we were seeking a declaration from him with respect to the time that he spent

[00:31:12] Speaker 01:
Okay, so did you have a subpoena?

[00:31:15] Speaker 03:
Did you move to compel, I don't know, whatever the process would have been?

[00:31:17] Speaker 01:
We did not do that.

[00:31:19] Speaker 01:
We got resistance from the government's lawyer and we took his deposition on the limited topics that the government's lawyer allowed us to do.

[00:31:28] Speaker 03:
But you did take his deposition?

[00:31:30] Speaker 01:
We did.

[00:31:30] Speaker 03:
But you weren't allowed to ask about this?

[00:31:32] Speaker 01:
I don't, Your Honor, I don't want to misstate what we asked or didn't ask.

[00:31:40] Speaker 01:
I don't specifically recall.

[00:31:42] Speaker 01:
And I don't want to provide misleading information to the court.

[00:31:46] Speaker 02:
Can I ask you just about the your clients principal place of business so and the notice of removal you said it's Missouri and I don't know if there's anything in the record, but Just from your knowledge.

[00:31:58] Speaker 02:
Can you tell us anything about what the basis for that?

[00:32:01] Speaker 01:
statement was I Don't recall offhand, but I don't recall that the removal was challenged, okay, so

[00:32:09] Speaker 01:
And again, I apologize that I'm unable to answer the question as to the principal place of business, but I don't believe that there was a challenge to the removal.

[00:32:18] Speaker 01:
Okay, thank you.

[00:32:21] Speaker 01:
Unless you have anything else, I'll submit.

[00:32:25] Speaker 01:
Thank you.

[00:32:34] Speaker 00:
I just want to highlight one thing for rebuttal, then I'll take any questions.

[00:32:38] Speaker 00:
I want to point out that in the interrogatory responses that are part of the record, volume 235, I don't know if it's the exact site, but I think that is part of the interrogatories.

[00:32:50] Speaker 00:
It will show that Mr. Beauchamp was identified in this action early as a witness.

[00:32:57] Speaker 00:
Then in the expert disclosures where we didn't provide a report, but we did provide

[00:33:03] Speaker 00:
a summary of what his testimony would be and how he would potentially provide opinions on the PTC data recorder records and the reliability of the records.

[00:33:13] Speaker 00:
So I'm pointing that out to push back on the assertion that they were somehow caught off guard.

[00:33:19] Speaker 03:
You have that in your reply brief already too, I think.

[00:33:21] Speaker 00:
Yeah, that they were caught off guard by Mr. Beauchamp.

[00:33:23] Speaker 03:
Could I ask you, so the earlier internal proceedings that the union was involved in,

[00:33:32] Speaker 03:
It seems like your client did not succeed in that.

[00:33:34] Speaker 03:
Should we make anything of that?

[00:33:36] Speaker 03:
It seems a little bit unusual that if you're right, that the union didn't think he was right.

[00:33:45] Speaker 00:
Oh, no, that is not accurate that the union did not think that he was right.

[00:33:49] Speaker 00:
And we submitted a declaration of his union representative, I forget his name, stating that by him signing off on the

[00:33:58] Speaker 00:
on the award of the public law board did not mean that he has consented with that decision.

[00:34:03] Speaker 00:
So we have that declaration.

[00:34:04] Speaker 03:
So maybe I just don't really understand how this internal, who was the decision maker and did the union have to be part of the decision making?

[00:34:11] Speaker 00:
Yes.

[00:34:11] Speaker 00:
So that's a good question.

[00:34:12] Speaker 00:
So this is how the public law board works.

[00:34:14] Speaker 00:
It's a three member panel, but for really all intents and purposes, it is a one member panel because you have the union bringing forth the grievance and his name is Mr. Kenny.

[00:34:24] Speaker 00:
And he is the one that actually

[00:34:26] Speaker 00:
argued in briefing to the Public Law Board, he's not an attorney, that this was improper, he should not have been terminated.

[00:34:34] Speaker 00:
Then there is a member of the Public Law Board, which is on the part of the respondent, saying, no, we did everything right.

[00:34:41] Speaker 00:
Then the third member is actual the arbitrator who makes the decision.

[00:34:44] Speaker 00:
So really, although it's a three-member panel, for all intents and purposes,

[00:34:49] Speaker 03:
It's just the public law board arbitrator making the decision because there's an employer representative, a union representative, and then the arbitrator.

[00:34:57] Speaker 03:
And so you're saying they balance each other out and it's not like the union agreed is what you're saying.

[00:35:01] Speaker 00:
Right.

[00:35:02] Speaker 03:
And the public law board, do they dissent or what happens?

[00:35:05] Speaker 00:
My understanding is if you can write a dissent, but they didn't do that in this case, but it wouldn't make any sense for Mr. Kenny to suddenly go against Mr. Vincent Sini when he was the one briefing he shouldn't be.

[00:35:17] Speaker 00:
And he actually, we did provide, it is in the record of another case where Mr. Kenny explained that just because I have my name here doesn't mean that I'm agreeing with this.

[00:35:27] Speaker 00:
And the Public Law Board did not make any sort of determination as to whether or not there was retaliation.

[00:35:34] Speaker 00:
The Public Law Board solely based its determination on the record of a non-attorney proceeding handled by non-attorneys, by non-judges, where a lot of evidence was not even put into the record.

[00:35:44] Speaker 00:
And they just are limited to the record.

[00:35:46] Speaker 00:
For those reasons, courts have made the easy conclusion that public law board proceedings cannot be used to collateral stop.

[00:35:55] Speaker 00:
Unless there's other further questions, I submit.

[00:35:58] Speaker 03:
Thank you.

[00:35:59] Speaker 03:
Thank you both sides for the helpful arguments.

[00:36:01] Speaker 03:
This case is submitted.

[00:36:03] Speaker 03:
So the panel will go conference now.

[00:36:06] Speaker 03:
Our block clerks will talk to the students.

[00:36:08] Speaker 03:
Then we will come back and answer questions from the students, but the questions will not be about any of the cases we heard today.

[00:36:14] Speaker 03:
Thank you all.

[00:36:15] Speaker 03:
Have a good afternoon.