you calculate compensatory damages where's the corrective action i mean it's possibly tied to the covered personnel action what happened to him and you're supposed to get if we were to find in your favor relief from that issue is if he was subjected to ask us to work environment as is claimed miss case intimidation against him as a whistleblower being shunned across the facility and being impugned by management being investigated by management the only remedy that we can find to that short of the o s c recommending disciplinary action against the alleged perpetrators in this case would be for compensatory damages under the whistleblower and that would be i don't know how i understand you say that there's an overall kind of overarching claim about his being retaliated against we've got here are factual events that if that a j considered and those are all kind of tell tangible the d investigations the not being invited to meetings having his overtime request scrutinized so those are the kinds of actions that you're seeking compensatory damages or well yes and that's part of the a j did not examine what we consider met we would much rather be here with something of a of an explicit economic and made sure as a remedy to being harassed as my client contends for being a whistleblower but it's all we have and not and that really is reduced to a non economic on liquidated damages and so you're saying the overall umbrella arching you're calling it harassment but the a j correct that's part of the cap ex the but the but the a j said that the investigations weren't personnel practices because there was no explicit threat of discipline so the a j dismissed that portion of the claim and the state also found that his superior his boss who was the person alleged to have taken these actions against him had no knowledge of the earlier disclosure so one of the primary factors in the whistleblowers is that the disclosure has to have been a contributing factor to the action taken against you and i correct me if i'm wrong but i thought i understood  j in this case to have found that there's no evidence that that supervisor who supposedly took these actions against him had any knowledge of their leaders that is incorrect or are everyone i mean everyone who was involved in i idea investigation that was a conversation they were having while miss holmes my client supervisor and dr kurian said to her in discussing issues that miss home and said she had with my client just remember what happened to dr struthers i didn't know whether or not your charge about the investigation was that the complaint is that the investigation should have been conducted or you complaining about the complainant coming forward with the complaint and that was the hostile work environment it's both because your honor if you look at the them don't you think that if given the nature of the allegations raised dr think that the agency had an obligation to do an investigation it's conceivable  violates the requirements for the credentials for the for the convening authority he was the appointing authority for dr struggles so he then is presented with these three complaints from people who all were made aware he was charged of in that investigation but no discipline would be imposed that was there that was the result so the covered personnel action is just the conduct of the investigations and if there was no action taken to the result of it it's from our perspective your honor it's the threat that that is that exists with the investigation he's accused of multiple  outstanding literally ok after that the agency levels multiple investigations against them and there are a number of these work weren't all allowed into the record and the witnesses were committed to testify about all of these these investigations and then launched by the agency along with a number of other players are you a bit are you saying that if someone witnessed a nurse violating a patien fact that he had made a whistleblower allegation in two thousand and thirteen was a contributing factor to that can conduct inger that the initiating of an investigation and as you just admitted that it seems to me i mean i think it would be very strange indeed if the kinds of complaints that were made against him were at least investigated i would be very disappointed in the government if people were to make these kinds of complaints against someone of the  if these complaints hadn't come from people who were both aware of the whistle blowing and had made it and so are you saying that when ever someone is aware of whistle blowing they can't report action they believe to be improper or that there can't be an investigation once they report action that they believe to be improper i'm saying that if we can show because point when that insulate somebody i potentially bad behavior i'm not saying your client did that but if you make a protected whistle blower then you can do whatever you want wrong and you just tell or behave i'm a whistleblower this is what i disclosed that everybody knows it what you've disclosed now they're all tainted and i don't care report anything bad you do after that no i'm saying your honor is that you certainly investigations could occur what i'm saying is that if we can show that these investigations would never occurred but for my client agent make any findings about that that well i mean we're saying you should have the a j didn't look at never looked at the question of the fact that it's a fact the fact that the people who initiated these investigations were both aware of the whistleblower agency knows about your bad conduct as a supervisor which is directly the opposite of what his performance appraisals show so all we are saying is this if if my client can prove that these people a knew about or would be motivated by his whistle blower status initiating these investigations and these investigations come up empty that that's part and parcel of r retaliation and that because the the the opposite of this of the absence of this conclusion would be that then they can take what out tonight has done they weaponized investigations so they in this case we have all of these have you put any number on that amount well we we can't do that in compensatory damages in this case would be on liquidity now certainly it's this is a this is one of those cases around where you can make a demand but the that there needs to be a course of conduct of severe and previous right that's the standard under heris but the exceptions that is that you can have an event that is severe enough that  i'm saying in a in this context i'm not saying those two are equivalent in reality i'm saying legally that a hostile work environment claimed in our opinion should arise where the whistle blower as happened here was outed to the subject of his report directly because the consequence of that is exactly what happened at this facility after that happened the subject of his report handed  them handed my client it recruited a list of recruiters and said you're not going anywhere here you need to leave that hasn't proven to be true has it oh it yes and nobody it was undisputed not that he isn't going anywhere and i mean beyond that record as it exists but the point of this is that and the idea behind the in the savage case is that the harassment constitutes or is made up of actions that would have a chilling effect on whistleblowers and what we're saying to you is that if there was ever a case where you would have a chilling effect it's this kind of case where the whistleblower is outed after the report is subjected to multiple investigations is shunned across the facility and and what there's no remedy for that i mean the point is that if if that's permitted then there's no restraint upon the agency to continue to to harass my clan or anyone else or the witnesses and in particular that the a j kept out all the the witness testimony about the consequences of harassment of the witnesses because of the investigations that they were subjected to by my director mill and by other mid level management in that facility after they became a finance good morning in may please the court the ministry of judge denied mr scruggs request for a corrective action because he failed to demonstrate that there was any prohibited personnel practice that took place i think that while we're talking you're actions that he claim took place and that they were prohibited the ministry of judge in this case concluded that he that mr scruggs was not subject subjected to any personnel action and certainly not a prohibited personnel action form just this case it stated that the board will consider evidence regarding the conduct of an agency investigation when the investigation was so closely related to the personnel action that it could have been a pretext for gathering evidence to retaliate against employee for was supplying activities in that case the court dealt with the m s b be dealt with a prison guard who had blown the whistle on a the warden the warden then later initiated an investigation into the whistleblower the whistle against somebody right correct and later somebody who knew about all that storage and most the nation advantage his point so there's there's two reasons why it's not applicable in this situation  altoona the administrative judge said it was quote it would have been foolhardy for the agency to ignore these invent these complaints so therefore the existence of the least of the abbey investigation was not a pretext to retaliate against m the other part of that issue is the there was no threat of discipline merely being subject to an investigation and what they mistreat of judge disinvited to meetings at the p p x eighteen the ministry of just pacifically credited the testimony of witnesses and said that i simply don't believe that he was disinvited to those meeting so that wasn't a basis for his a his allegation that there was a change future the less qualified new hire would somehow screw up which then would reflect poorly on his department and him specifically and he would be subject to some sort of discipline as a result of that the a j specifically found that that potential future harm was too remote to be considered any significant change in the duties responsibilities or working conditions related in two or three of those opinions the board was essentially focusing on the government's argument well we would have done anyhow the government's defense and they were looking at  could be made for an investigation that becomes so onerous and burdensome to an employee that becomes a significant change was due to the sponsibility and working conditions so if it was required to meet with investigators twice a week well i mean as well an investigation was so onerous to lay an employee that potentially it could be it could fall within that eight hundred and twelve dollars section in this case mr scruggs only interviewed what a single time for all three of those investigations so the mystery of judge concluded properly