major protective disclosure and the reason why i want to make this point is it was the mystery drug to ask why client with respect to the struthers report and why he didn't talk to him first as if there is or would be some obligation to do that and there isn't like last response was i did talk to him they were friends he started crying he admitted that he had a problem but then he ended the conversation the piece out you know which retaliation was specifically attended to which disclosure but i can say that the ai beat for example the administrative board that was that was instigated which we contend was retaliatory specifically if you look at the two complaints that were made to start that from this home and his crimes they very very very specifically the for the straus report because of his character they labeled him as a shark said that he was disruptive in the facility and that was that italian tory action course the district judge said well there's no retaliation there because there's no threat of there no explicit threat of discipline and your honors just like a criminal charge the institution of an investigative board which had a you know multiple pages of of accusations it has an inherent risk and  charges but no action will be taken and so that the the point of that is that for the ten months that that a i b was in place there was a resubmit an inherent threat of discipline and when you look at the cases we've have supplied the court with the the the threat cases now they didn't arise under investigations but the misrule a case for positions if i if i may just one more point before i hit that your honor in terms of the whole issue of where there was no threat and remember that under under the savage case  the board has defined a private action as one that has an impact a significant impact on working conditions that may result in a chilling effect upon whistleblowers so if you look at this case that the number of investigations but against my client and against the witnesses in there and must be cases that we contend that these investigations are essentially been weaponized to shut report called into question mr mills judgment from a management perspective for allowing dr struthers to continue to act as a physician and in addition to that talk about the job talked about sports and the interview was over so that there's a that is a scenario that warrants caution in terms of accepting the explanation where there is absolutely no way to make a determination because there was no record of what went into the decision making process the other point i make on this decision your honor is that there was a pattern that was not  examined by the administrative judge underwritten and that is that we had three management people after my client became a whistleblower make comments that were very very similar and that process was starting to unfold had already outed my client as a whistleblower directly to dr struthers on july twenty five and the interview was on until august that's an event that is extremely telling in terms of the motive and and the conduct of that official afterwards so you know dr cherry and told her her laden with her hands in a trotting motion so that occur even just before we knew officially that she knew about his whistle blowing on july twenty sixth and before the selection process in august so we submit that that that tank where she's a selecting official makes it virtually impossible to get past clear and convincing evidence and the other thing i want to point out struthers later gave him a list of employees not on april third not on a four point thirteen as administrate of judge concluded so nowhere in the case does the administrative judge try to look at the larger picture and in the part that i submit is even more critical in terms of a larger picture is we have an employee who had year after year after year after year question of whether an investigation is can be made into weapons and used to intimidate employees who are whistleblowers may be the if if savage means anything savage and roach mean preemptive personnel practice and that's the issue before this court which we've submitted to the court that the only answer has to be yes that you can't just initiate investigation af investigation run them out to the end of the like walking the plank hold them there for nine or ten months as they did with the ib and then say ok we're not going to do anything somehow that has to stop that that to be held responsible that's the only way that this can work in our opinion we submit to you there has to be a decision that says you can investigate to that account cows come home but you better be doing it for a because of consequences if it's not legitimately as you're going to shut down whistleblowers you're basically going to say to them the agency is free to drag you over the coals every day of the week as much as they want  through without it without impact and that's not too f did not argue below nor does he argue here that the investigations cause a significant change in his working duties responsibilities or or work conditions instead he merely argues that the board has previously considered evidence of investigations but as board case law makes clear including the decision that opposing counsel saves the board will only consider evidence of a mess a geisha and when they could have been a pretext for later retaliatory action here the investigated it his home and played no role whatsoever and so here the mystery of judge not abuses question by excluding evidence of these investigations because the investigations cannot possibly have been a pretext for the her complaint to the be and in her testimony that we've cited expressed great sympathy for dr struthers with respect to what was quote done to him unquote and so to those two people with respect to these investigations ready position there is no remedy i'm sorry for there was no adverse action taken well there is a there is a where my client was labeled as as having a cognitive disorder it was put into the record it was put into his claim to be present tense by mr mills and then it was put into the i v and then that word spread through the facility so that would be part of a compensatory damage claim in addition your honor we we contend that at some point we should be able to bring a stop to the investigations ok