ok is there anything else yes there is anything else as far as douglas factors this case involved a twenty year navy veteran a chief petty officer devoted his life to serving his country and when he retired from the navy  a job will be i guess who originally with the department of defense and then through the last five years of his career with the department of agriculture he received a telephone call from his supervisor at one point telling him that people have told her that he was not at work when he was supposed to be he got extraordinarily upset and claim that you either say you say that but in fact has any evidence indicating that it's supervisor said there may be a perception of this even though i don't think it's true and he gets overwhelmed by that  and claims are you saying i cheated the government and who said this anyway and have you tragically the video entrance so the building have you checked with the bus driver she said she didn't believe it so quietly and supervisor told him she didn't believe that he had been absent well i guess one can say then why maids in the subject at all because she was trying to counsel him ras it's conceivable but when you get right down to it he insists that this is not true that there is no trance this is true and we asked her if she'd check these things and when she says no she violates the agency regulate told him she didn't believe it why does she have to check it if she doesn't believe  file that we have the entire transcript on pages one thirty i'm looking at it right now through about one hundred forty and so you know i personally have not listened to the tape and i didn't understand there to be any dispute over the it's penalty decision all we can do is assess that they comply with the douglas factors and then review it under a very deferential standard so you try you can't stand here and try to just really argue the same case to us because we're not a court of first impression who reconsiders the penalty to novo so what is it about this case that you think amounted made in conjunction with the distribution which were very derogatory attack on management and then it's also my understanding that part of the reason he was fired is because he demonstrated no remorse for having done this and insisted he would never work with this supervisor again so my understanding that the determination to fire him as articulated by the lower tribunals in this case was not limited to the fact that he recorded it it was not limited to the fact that he sent it out it also included the comments he made again his subsequent absolute refusal to ever be willing to work with the supervisor again and my misunderstanding what was i think the things that were government i was so overwhelmed by what happened that that was tim self with gasoline and attempted suicide that was avoided by somebody stopping him but he had what was described as post traumatic stress disorder he had a nervous breakdown his wife was required to answer any questions that came from the agency his wife had a nervous condition and in one year seven times she was taken by ambulance to the hospital and on the seventh time she die you need to look at what the effect of the conversation was honestly perry and them are a mitigating explanation for what he was actually going through at the time he made this mistake in his life oh you know those things happened after they were the result i mean don't you don't you agree with me that certainly if he was in the midst of dealing with his wife's trauma while he did this stupid thing the agency would treat that differently and i do agree with you on that but here all of those things are consequences that he experienced in his wife following this action and therefore they can't be used to necessarily go back in time and say well boy this guy was under a lot of stress  slightest shred of evidence in the file that he was ever told or shown anything regarding tape recording most states in the united states allow one part of the tape recorder conversation  but the agency had a regulation specifically prohibited however the judge at page eighteen of her opinion points out that the supervisor is supposed to give the copy or advise the person i some point in time before such events happened that it is prohibited by the department of agriculture's regulations and there isn't the slightest shred of evidence in the file or that was ever presented that to supervise it gave him told him or did anything regarding not reporting a conversation and in fact there isn't even an allegation without evidence that he ever was given the notice and he couldn't paper court was there evidence for example i know that he claimed he was not aware of it but was there any evidence that he didn't receive it you noted he well only seventy didn't receive it did he question his supervisor to be produce evidence that other people possibly didn't receive it or were unaware of it or anything like that you know because he's an h r supervisor yes and this is a policy of the agency that he is a supervisor for human resources and i guess i'm questioning whether it isn't fair to impute to him the obligation of knowing the agency policies given that he is an h supervisor and he should be the person actually probably making sure everybody knows about the policy here is an individual who in nearly thirty years of his life had a spotless record if he has the slightest indication that there was anything wrong with according as i believe that it is clear from his whole lifetime he would not have done something that he knew was a violation of the will see i i  knowledge of law as you pointed out it's a violation of agency pollak well yeah those are two different things but i'm not certain i agree with that given what you've articulated at his mental state at the time and the fact that he also not he didn't just record it i know he sent it and did you read the e mail you know he went on and on one in the email about how people should send it to o p m and this is a horrible example of leadership and then later he said i will never work with that woman again well and he showed no remorse for any of the actions so here you are saying you're telling me today he wouldn't have done it if he knew it was wrong but isn't that consistent with his own refusal to express remorse for having done any of was a record shows again i'm not judging his credibility i've never met the person that he didn't testify in front of me that's why an appellate court is really limited in terms of the level overview we can give because i  clear i'm making no personal assessment of mr kerry her his credibility or anything else we don't get to do that on appeal we don't have the ability to do that on anyone else well and taking what he says is country and this is the way he ends it it's just it just doesn't seem to be the right outcome so this has nothing to do with the case but i'm going to program i mean has nothing to do with the case but i'm going to pray for him to  support mr kerry was a human resources supervisor and he had the obligation and responsibility to provide guidance to nearly two thousand federal employees including disciplinary measures even before this court he shows no contrition and no signs of remorse he continues to argue that his actions were reasonable the agency was well within its discretion to terminate mr kerry unless the court has any questions and what about his mental health i'm not going to detail about an open court but there is evidence that he does mental health concerns how was that if at all factored into the assessment of his been considered in the context of the punishment right your honor the government if you did consider it in the mitigating circumstances yes an instance where it would have been a cause and not in the fact yes the government would have because he thought he was being accused of cheating the united states but progressive discipline would require a different result and i know what he said and i appreciate what you just repeated that i will never work for