actions taken by the veterans administration against dr greenspan dr raines five span as a board certified radiologist he was elected as medical staff representative for the harry s truman v a hospital in that capacity with the acting letters to the v a office of inspector general and admitted it was subsequently designated as many specter general veterans administration hospital is within a veteran's integrated service network which is referred to as a visit  protected dr greenspan was reprimanded for making unfounded defamatory comments in the agency's table penalties that is the fence number twenty four there is a separate offense since number sixteen being disrespect fair and our first point and feel is that should be reversed we moved eliminated before the trial to have evidence of the disrespectfulness excluded because it was not charged conda the agencies persisted the administrative judge while the evidence and in his twenty one page opinion only one paragraph focuses on whether dr greenspan's comments were unfounded defamatory the evidence relates to his disrespectfulness there's a marriage system protection board case which is directly on point the smithsonian institute where the employee was charged insolence and rudeness the agency sustained the charge of insubordination which was on charge conduct system protection board reverse because you cannot convict an employee of conduct you did not impropriety based on that in those claims that also been submitted to the inspector general for the same reasons the inspector general found enough to investigate it was conducting an investigation at this time dr greenspan had a foundation for those cla s to determine whether the agency would have taken the same action against dr greenspan absent is protected disclosures for three factors the court considers or the strength of the evidence this as i've discussed that was weak the next factor evidence of retaliatory motive and there was direct evidence that dr greenspan was disciplined because of his protective disclosures at the doctor or i'm sorry is it a protected disclosure to say th greenspan statement were protected disclosures so the procedural posture that this case of members and it in his allegations are assumed to be protected disclosures the ministry of judges decided the case because he found the agency's affirmative suspension of him and found in defamatory evidence he specifically testified that basis for those claims was irrelevant after the march first meeting dr greenspan was called and by his chief of please the court the petition argument is largely irrelevant with respect to the claim that they're pursuing the w p a claim does not call for a full review of the disappointment that mr your good dr greenspan face but only only whether it was done it for retaliation the m s p v applied the proper standard which was whether the agency can prove by clear and convincing evidence that it would have taken the same action absent the protective disclosure it did assume  as as my colleague barr said it did assume that there were protected disclosures and it concluded that the same result would have been reached with each of the three alleged disciplines with that with even if they had it were not pro disclosures the first thing that petitioner addresses is is this this hawkins claim they argue that the discipline was based on an uncharged violation they claim that they were charged with being unfounded some of the things that he has reported that have been investigated and so on where also the record also shows that his professional performance was highly rated in his position as a physician and yet these actions are taken in a time frame which follows immediately upon this statement this public statement and yet we're told that these various actions disciplinary actions and so on had no relationship to any of this in which case where did they arise what is the fact douche your honor they did they actually had a relationship they had a relationship to the statements that he made at it in that staff meeting just just to be clear his only claim is that the retaliation was for the march staff meeting outburst he's not asserting that he was being retaliated against for its prior disclosures to the there's there's three there's there's three areas that he said he was disciplined for the first was a record the he definitely was reprimanded as part of because of what happened in that meeting he wasn't reprimanded because of the alleged disclosures that were made or the beauty he was he was reprimanded for the way that he treated his his superior at that meeting that when i'm trying to understand the difference was it his tone new homes who would choose reprimand he said has nothing to do with the content of what he said yes yes you are and if i gave you i mean he was he was reprimanded because he made unfounded statements regarding nepotism  that were just as as as as as unfounded and as and that the point being your honor that that if you had made that the statements not about protecting allegedly protected things but about other things not he could be punished and reprimanded for the for for making them with respect to the canteen he had knowledge he had no information about whether they had input of the canteen or husband with a knew about the merger he had known from knowledge about how the canteen was funded he was making statements and with respect to the ethics i mean it was it was just an ad hominum attack now but that's only half the analysis under that that that's the case what you balance the evidence for the supporting decision against the motive to retaliate now petitioner had aired his views i knew in numerous venues as i mentioned there was no punishment made when he aired those views in those other venues he was in was enough for you know  position where he could he could make any kind of attack that he wanted to against a superior superior but more prone to overstress to decide if these statements were founded despite the fact they were told they protected you notice to look into the merits  he has challenged whether the statements he asked challenged whether there was evidence to support the conclusion that the statements were unfounded but he has not provided evidence that they were that they were and whether there's evidence and strength of that evidence whether there was a motive to retaliate the person who made the decision about the reprimand mr clarke he was not the subject of the disclosures he was  he had received other disclosures in the past from the petitioner he had not taken any action it was only when mr when dr greenspan made these accusations is unfounded accusations in the meeting that at that point mr for retaliation so to the extent that there's anything missing on this side of the scale as far as evidence supporting the decision it doesn't matter because the they have a show and a motive to retaliate and if there's not that then the whole whistleblower claim penalty and to drop it down to two at the lowest level that demonstrates again no motive to read and no motive to retaliate which is that keep that they have to show to establish that the that before you even get to the question of the evidence supporting the decision to keep it there to show to stablish their claim with respect to the proficiency rating again doctor we have dr durbin who made the decision to lower the rating he also was not implicated in the disclosure about miss croisset so again we have no big basis for retaliation if the that he offered testimony about why he lower it it was not the overall rating that was lower it was not that his that there was no change in that in the year before what was lowered was that that that's an issue was that rating on a subcategory if their personal qualities and that was moved from high satisfactory to satisfactory and that testimony was that that was because of his that there were we get the exact words your honor that that is conduct was blunt and arrogant and so this that the manner in which he delivered what he delivered was relevant to the the part of the quote derogatory quote inflammatory and quote inappropriate manner in which in which the petitioner behaved in that meeting charged but that if your honor if if if if this was a case where met that charge but it that things that mr clarke are considering were also relevant in whether the agency with it was evidence supporting the agency's decision i mean basically what you have is that on this side it is did that did something happen outside of the court protective disclosures that something happened that would warrant the reprimand and that the minor alteration in the proficiency rate has to go outside the letter to respond to a few of the government's points first i'm not sure what their position i thought at the beginning that they said it wasn't relevant what dr greenspan was charged with and hopkins wasn't relevant and it wasn't relevant whether they changed the charge in the end i think no proposed action was taken against dr greenspan afternoon if disclosures from age four to finding that it was a man or a four on which they underline in which he made his accusations at the march first meeting that prompted the proposed disappoint not the statements themselves so they're what he was charged he started making unfounded defamatory comments and they're saying they disciplined him because of the manner for i think respectfully say that evidence of whether he actually committed the conduct used chart with is relevant and  greenspan second declare five point they said dr greenspan was aware of a previous i g inspector general exoneration at the march first ninety nine meeting there were two inspector general  greenspan's letter and that had not been resolved he was not aware that at the time of the march first nine hundred ninety nine meaning finally they talked about evidence of retaliatory mode and dr greenspan's comments at this meeting were not limited to  the conflict of interest and the nepotism he made a lot of broad ranging comments about this in leadership in general and in physicians did not feel that their input was being taken seriously that clinical decisions were made being made that bad decisions were being experience cuts in funding if he did the evidence retaliatory motives clear and dr greenspan was making allegations again against the entire vision leadership he was singled out and disciplined for these two comments about