take mr henley's allegations as fact and accordingly on march twenty eighth of march thirtieth two thousand and eleven and he was confronted by his direct supervisor dennis barr but told him and i quote your father went to prison for killing your brother too bad you got the wrong one he should have got you walked and offered his hand in a fake apology and once he had secured mr henley's hand he further threatened him we're going to get this fixed real soon and then you'll be gone it's fun thinkable that employee of the united states government should be treated this way and no reasonable person would remain in the job unless the agency fix the situation but as mr henley alleged here the agency failed to fix it although he told the cent he was told he would remain on administrative leave until investigation had concluded however while he was still employed at the agency there was no of meaningful investigation that took place for example the investigation not a job and he still continued get paid and he was put in the scenario where he was not being threatened by this man so didn't the agency take some things that it took some steps but it didn't fix the situation because you know if you look back in the history between mr the job center and he was supposed to work at the job center but he was not put back into his duties he was placed in the same building where walter was could keep a close eye on him at all times but but there was a complaint here is not that they didn't investigate in the two weeks it's when he came back to the center it was clear to him that no investigation was underway and i believe it was may ninth so over a month we're going to be eleventh he reached out to the management because he realized walter was going to provide  any really full investigation and i think our position is that when someone is subjected to this sort of horrible treatment they are entitled to investigation and it was reasonable for mr henley to infer particularly from his past interactions with what walter was that no investigation was ever going to take place and in fact the investigation formed at the government relies on that you know see report and mr west testimony or his testimony to investigators supports the idea that no investigation took place investigation on november eighth so that would be about six to seven months after he had initially reported the incident with him to be clear a large part of this case is the prior history between mr west and mr headley  reaction two of his direct supervisors had issued letters critical of his job performance and in fact their own performance improvement plans which we noted as this a major step toward germination and that was without ever observing his teaching methods it's a reasonable inference for him to draw that he was trying to do that mr west was trying to push him out ok i guess i understand what you're saying and i appreciate what you're saying but we get a lot of these cases of the cases are because someone has out and then they file an appeal and they claim either it's because the community very nice and so retaliatory reasons but in this instance you're saying because he thought he was going to be pushed out unfairly the that a pattern of harassment and or retaliation gives rise to intolerable working conditions really under two situations are two sets of facts the first and finding is what i refer to as kind of a death by a thousand cuts where there are repeated actions taken against someone that undermined their employment if so that they cannot possibly get a meaningful chance of promotion and they can't get very viewers and at a certain point a reasonable person says you know what i've had enough and that in the basis here is that the agency has to go through proper procedures to terminate someone and they can terminate some of their improper acts and that would be the intolerable working conditions in hiding we believe this case there's a great deal of similarity dining and in fact this kind of plus because you have this long pattern noted and the board noted there is a requirement that the employee act reasonably that they do not jump to conclusions that they give basically the agency a chance to fix things and that's what he did so  after the for the incident he remained in his job he asked for an investigation when it became clear to him that walter west was going to provide an investigation he reached out to the director of the forest service who told him that the the national director of corps would investigate his claim and be in touch with him on may twenty third no later than may twenty third mr hadley waited till that day and when he didn't get the communication he realized he wasn't going to get the proper leave in two choices which was to resign or to await the next retaliatory act and finding it's clear he was not required to sit there and wait for the next for retaliation and that's particularly true here where there had been use of physical force to ask of an aside i mean listening to your argument and certainly reading the br including the great grief it looks like assuming this were treated as a constructive discharge your allegations were all go to the basis for this war is improper because it was retaliation because your client wasn't like there was you know ha a discharge case to off it's a mixed case right i think that's right but there's you know if you look at the base case for example they in the base case that the board found that there was no evidence that she was discriminated based on her based on her sex but nevertheless they found in her favor because it was a constructive just charge that that there was a hostile working environment that caused her to resign and that's not permissible the agency can't create the situation i caused them to resign and so she was entitled to relief in the form of i'm not exactly sure of this point but she was i think ordered reinstated in order backpay so it would be a similar type of claim to  and we think that the property here your view of the law is that necessarily follow ups if you were to prevail on the fact that this was a constructive discharge then you would prevail on the that that it was improper and you claim to get  instead that's right but this is this decision wouldn't be deciding that he's asking for a very modest relief in that he just wants the board to decide this on the facts so we're fully decide what the that's what i'm asking you to decide whether it was an action you have just to decide whether it was it intolerable working condition ok so that is that it just charged so yeah so he's got a discharge and what reinstatement because and he was forced to resign because of and the working conditions that's correct and what happens when he goes back i mean you're saying he left because it was so intolerable and he hadn't taken any action against the other person what's is he assuming that that would be corrected necessarily but why she corrected it so i'm not sure exactly what relief he would ask for and really i know that's one version of relief available to him but the board has broad discretion and in the relief that it grants so it may be that he doesn't see green statement that he seeks just back pay or something similar to that reason not to enter to remand to the board is the potential message that the sounds because mr hanley is really asking this court did to my allegations establish intolerable working conditions and to hold that they don't have to necessarily say that  issues were only tolerable working conditions and it's beyond dispute that his allegations included what would constitute assault and battery common law and perhaps simple battery under a criminal statute we think those are serious allegations and when those are made the government i would amend that to say yes make all reasonable efforts and i would also point out that that was the same standard the one that you just recited the same standard applied behind him in bates and i think the best way to address this case is to compare fact by fact with what hiding it kind of  this case should be stayed based on the grant assertion ari we don't really have an opinion on that but it i don't think would be a proper since it does affect whether this court has jurisdiction if the supreme court were to reverse parry which would also implicitly versus this as they stand before the supreme court rules who would consider this more of a potential next case as in he raises a combination allegations but they do not attach until the board finds that it has jurisdiction which obviously didn't occur here in a true mixed case after the board find the all the issues including the discrimination claims those are going to appeal to the district court and they're going to trial the no on the fact issues and i think the legal issues are review under a deferential standard similar to what's done  i'm sorry can i just be clear so if this were sent to the district court would be still an appeal of the m s p be just misspoke for lack of jurisdiction so would not would it not be the threshold issue before the district court as to whether or not that the certainty certainly it's going to be mr hadley would have a very strong basis for wanting us to stay this case because if kerry comes out the other way by the supreme court he gets to jump right over this jurisdiction issue and gets to automatically under the government's view of what could happen present all of these facts and these are he's not my client so i can't speak for him but i would assume people find that to be that's the present regime and then has to be really be not not forthcoming in the reasonable course seeable future is that not right i would i would respectfully disagree with that because in fact they took immediate action they separated them they put him on administrative leave for approximately two weeks as you noted he or it was just more notice he was paid during that time they then started giving him assignments or he wasn't just sitting around twiddling his thumbs he was actually doing work he didn't like this and he was given but he was given things to do and he in fact it didn't initiate a form open playing on this issue until may yeah but things usually happen right in the bursts which is of someone allegedly threatened some it's that person who's put on administrative leave and supervisor for example the guy that denied making the statement tonight threatening him deny doing any of these things and so while the board didn't make a factual finding i think that perhaps because the reasonableness of what the agency chose to do in terms of separating them he says that responded that he thinks the safest course of action would be for either himself or mr hot to be put on administrative leave and see as you can see actually gave him exactly the relief that he thought and argued was what he thought was resign when it's exactly what he asked them to do but i would agree with that and i'm not sure it creates one anyway but i think it certainly does not when it is one of the courses of action that he himself suggested or presented as appropriate and  chose to do that  efforts to entrap him into doing things he shouldn't do but the fact is these are all appropriate things that his supervisors are quire they require him to do some work their part and to do it relatively close the facility they required him not to just disappear off to his house ten hours away without prior authorization and they required him to come back when they discovered he had disappeared and was it will and he had if he disagreed that these were appropriate he had means of redress he could have filed a grievance on the able claim he inaccurate in unreasonable because the agency was found its procedures and he is the one who chose not to wait for the outcome in a reasonable amount of time the court has no furthe is regardless whether the government was following procedures in investigating this matter and i don't believe that they did i don't believe there's any evidence showing that they were following procedures i would still say that the the law should not conform to the agent's agency's procedures the agency should conformance procedures to the wall and then i want to make one other point about the administrative leave issue mr hadley disputed that that's what he very least you can't leave me around this guy and the initial board decision actually recognizes this first mission to the site for a for his allegations out of the appendix one fourteen where he's saying that that was not his first choice nor was it the first choice