as you know mr leon with the mail handler for the u s postal service for eight years he was trauma needed for violating a so called last chance agreement which contained a provision which prohibited him from using profanity when addressing co workers even though some of the profanity that was the basis of the assertion that he violated the agreement was a reaction to profanity addressed to him know assertion that admitted that to any lay person who interacted with this person you would see he had some sort of mental disability now for the purpose of exhausting administrative remedies we are not saying that his supervisor should have known this we're just saying that any lay person would have known as a supervisor noted he had a problem like to work by himself a coworker stated he was seen crazy crossed their eyes had him he would state whatever the shop steward said he couldn't communicate with this person regarding these claims against him what the show in my view is that to a lay person someone would have suspected something was mentally disabled with this person now he didn't have like many people who have mental disability they don't know they have a mental disability so what i'm saying what i am saying and i'm getting to is that the government because they precluded him from dealing with the e c council or face to face they should be equitably counsel and it's just like having a jury trial by telephone you can see the demeanor interact with the person or whatnot and all you can do is do it by telephone welcome so now except that for the moment when he is to head off complaint so there's they're not supposed to count i don't know you ask me what the purpose of them going and i think it is important i think well and truly interact with the person to determine if there is a valid counselors fault that she was not able to interact it was the postal service fault precluding him from interacting with her whether in fact there was such an agreement in effect in this case because that the and i profanity portion of that agreement provides that if you go to certain counseling which he testified he did complete and that counts told him he was released region was in effect at this time and therefore it's not the correct comparative the there are other compared orge that we listed of people who did similar things and much worse physical activity physical harm to other people who were treated much more lenient than he was there's never any assertion he physically intimidated anyone or did anything he did his job and he cussed people who questioned him that's that was the thing he was terminated because of violating the anti christianity provision of this agreement which there's that and he did complete the required course to eliminate those provisions and at least there's a tribe material fact in that case he said he went to twenty different meetings the house going told him you were done you've completed did the meetings for him told him that and so he was informing the government of this saying the government itself admitted it never checked his file to see whether in fact he did or not so if in fact he had completed that provision was gone and he couldn't be terminated for that reason anymore  know your honor the only question that was raised was whether someone had told mr lee young that he had in fact gone through the entire counseling session and didn't have to go anymore what the last chance agreement required  effort to find it should be somewhere around page one thirty three of the excerpts of record there were a couple of questions that were asked that i would like to address one was there was a statement actually that was made that leon had just used profanity  if you look at the court at the excerpts of record at page two seventy nine to two aiding what was actually happening here was more than just the occasional use of profanity but a prolonged and continued use of profanity along with finger behavior was not notably more eccentric than that of many other postal employees yes just prohibited it as a result of the fact that he already had been terminated but that in his during the grievance procedure that determination was was taken back in exchange for his commitment to comply with the last chance agreement this was not the first time that mr leon had been through the process also there was some question as to whether the agreement was in effect let's not forget that he told his supervisor listen i will not act wasn't doing all of this i was not yelling and screaming and cursing at everyone i'm under a last chance agreement back that the doctor checked off that he had no disability so not only are we saying that a layperson may have found that he had instability but he would have been better than a doctor examining him for that specific condition  down the last chance agreement well you're on in this case the question it would raise a question of fact we think if the if he was fired for reasons other than a last chance agreement however in this case there is or is not but whether or not the supervisor actually came to the conclusion that he had violated the most of removal is dated january twentieth and appears of page one forty two of the excerpts of record and it states you are hereby notified that you are removed from the us postal service thirty days from the seat of this notice this action is based on the following reasons charge violation of last chance agreement important for the simple reason that there was no question in the mind of the official and in the mind of the of mr leon that he was in fact under the last chance agreement there's no question of fact with respect to that issue so he does not regret to raise the question of fact as to whether there was in all cheery a motive rather discrimination as opposed to that last chance agreement unless he shows not just that there was no agreement but that ms sandu the official who was disciplining him somehow knew that there was no last chance agreement or that having been said we think that's a question you don't need to get to because clearly the in this case there was no question that what we were dealing with with respect to mr early on was a continued use of profanity ten occurred over many days that you can see in the excerpts of record in the judge's decision on pages three and poor where she outlines this was not just a single case on the other hand with respect to souter's she actually did discipline him it just was not the spain type of discipline and it was not the same charge that was being brought when she began to speak to mr li on the same way she began to speak to mr souders that's when she discovered not only am i dealing with continued reporting over the course of several months of the same problem also dealing with the last chance agreement in which he has consistently at which he agreed not to engage in such time so the question was