on the fact that this was covered under use are but the fact of the matter is this this is a separate issue as to whether or not the conduct in this case was two things i think are the central arguments one was it related to his that's considered rude i appreciate the government's agreement to do that but i think that there are larger issues at stake here that warrant the court's action we don't object to that remain i would prefer stuffed in his car but the problem with the board's opinion is on the broader issues of whether or not that can be an act of discrimination or retaliation the board decided that it couldn't and it decided that based on the two things one that it wasn't arising  employment context into that the right implicated was a constitutional one and therefore couldn't be brought up as you sever basically when we think both of those arguments are incorrect first of all how can a situation where the perception is at least that an employer generated telephone found in an employee's car is not related to the employment context it would seem to be logical to us that that is in fact arising our employment the secondary facts  is that arising out of the employment context and we think clearly it is i mean the only rational rationale for installing the telephone would have been to track or monitor his movements particularly while he was in the military warning gather information help to feed his clan the secondary issue of calling him in off of military duty to answer questions without really any authority but simply going to the military and demanding without proffering pay or anything else that he and we recognize that cruise has some application here but cruise was was limited to the understanding that encroaches was happening as the reservist was asking for greater rights than he would be entitled to under the law the city had a policy to allow him alternative leave to meet his reserve requirements which it then took back i think the seventh circuit rightly said well if the if the employer extends a burden that's not required in the law and they withdraw that benefit then that is not an adverse employment action but the issue of but the screws court also said you rely on really to northern for your comp for your context in other words that the title seven analysis in burlington is what crews actually used so it wasn't what the government was hospital a supreme court case is that a materially adverse action within the retaliation context is one that would discourage an employee from coming forward would it show that employees assertion of a protected right up with the statute here the subject of the riemann but the second very context to this issue which is the other aspect of this it's not just hostile work environment because the government sites that has to be severe and pervasive actually it's severe  standard the question is is this occurred knowledgeable act of retaliation and other words is it retaliatory to place a listening device in someone's vehicle which seemed to be for the intended purpose of gathering information couldn't bring this because it wasn't it didn't say this is part of her talent for a hostile work environment it's said in fact that this doesn't even rise to an issue that can be litigated in any context because it's a constitutional right and therefore cannot implicate any aspect of his employment context we think that's simply wrong and the reason is again taking the title seven context out of burlington if i am raped in the workplace that is a form of sexual harassment it is also crime if i have an interest a listening device installed in my car in the context of litigation that could potentially be a crime as well it does not mean it's not an aspect of retaliation it does not mean it's not a materially adverse and therefore would end up with basically an exercise in futility well that's for another day but but this court could rule that within the context of this case this act is is it is a separate act of retaliation and therefore ensure handles the retaliatory work environment claim it's operating on the premise of two separate matters because again your honour's the point that we are trying to raise here is the issue of whether or not this act in itself is material adverse enough to dissuade a member of a protected classroom serving their rights if we simply go back and a hostile work environment judged by if we simply go back on that we are we believe that the board will rule as the judge did below that this was not severe a pervasive at all and the judge made that surmise based on his sent his sense nowhere in the record that this was only install for a short period the fact of the matter is if we do not perform but it was the board reject that line of thinking yes they did that they did but they so we can presume that they will adopt it the second time around well they didn't necessarily reject it i think the the bigger issue that we're worried doesn't rule that this act is in another self you know an adverse enough again we suspect that what would happen is is that that would be an exercise that would end with us losing because the board has already decided in their opinion that this is under underlying act is not sufficiently severe or not sufficiently material that it cannot form the basis of a kind so going back on a hostile work environment claim how can we have a hostile work environment claim if the board has already prejudged the underlying act as sufficiently immaterial and trivial in their view to not allow any sort of remedy in our fundamental fear is that the combination of the i thought when you said the combination of the two i thought you were alluding to having been rejected by the court you haven't then no but but the court fees the district is act asking the same question what is the federal circuit going to do and the reason this case is fraction the way it is is because i would have rows and again the fundamental issue that we're trying to get to with the board is not just that that there's a hostile work environment cl sending this back to us for hostile work environment analysis will not address that claim are fundamental point is defiance doll listening device in your car and you find it and it has d n a numbers on it and it was done while you were to being deposed and you find it in your car and that agency can never decide whether the phone actually belongs to them or not and it's traced to an employee that's involved in that process and that is a good night's will act retaliation because the fundamental precept is that  you would dissuade a reasonable employee from serving their rights in the in the real world well maybe they should have drafted the statute so that didn't have the benefit of employment or with but it does have that well the judge that was added to strengthen the act over the last seven years congress and strengthen the stack six times in favors of employees the reason that then a few play was added was simply too to address the card decision and the fact  comp morning may please the court do you agree that the government is taking inconsistent positions in the bevins action and case i agree that we are taking a separate position from the department of justice but we are also not bound by the department justices opinion in this matter and we just happen to disagree we believe that this is not something that arose in employment because it was an action designed to affect the personal life it was designed to innocent is conversations if true in his personal  car outside of work apartment just as happens in disagree but i believe as translated the district court actually rejected that notion and lease on a motion to dismiss so the district court is also willing to entertain this is outside of the employment believe that we correctly dismissed for lack of jurisdiction his claims of discrete acts of discrimination in retaliation but i would like to request to remain because we do believe we are err in the jury can in his claim of a hostile work environment adjudicated yet so i cannot state either way there would be something for the border to turn first in opinion after i mean can you imagine what obstacles there would be in in the stricken landscaping able to pursue that claim below well this opinion does the administrative judge's opinion initial decision does not actually represent the opinion of the board here with the administrative judge looked at it from a severity analysis to determine whether or not the allegations create were sufficiently severe to create a hostile work environment such as whether or not you ledged that he talked to anybody whether there was an any actual eavesdropping how long you drop in went on and so i imagine the board and would analyze that determination to see if that was correct and to see whether or not his allegations are sufficiently affected the terms conditions and privileges of employment such that it created hosmer i guess what i'm wondering is does the board agree that  hostile work environment area as a legitimate basis for retaliation claim under sara and i believe the council one of this on his brief the board has never actually addressed well they're not a hostile work environment under the retaliation theory of use or actually exists and so that would be something we need to address as well the state for the first time such a claim can be brought so what i guess i'm wondering is why wouldn't it be it certainly seems like they could be there's nothing within the limits of the statute that would prevent it but that search that's still a determination for the board to make and until the board meets that position or make sense of germination i can't first time without them making a decision should we decide that question before we remain well the board i believe there may need to be chaperoned reference there certainly something i'm happy to address further in a supplemental briefing if you would like but i believe because it's something within the purview of the board it would be something the board of deference to well when you say th based position that the book had not yet wilt on yes you're right it is a legal question but i don't think it's a legal question that's actually been decided before the board and therefore may not necessarily be subject to judicial review ye part yes i think starting around with moving on to the claims of discrete acts of discrimination but the board since we are here will say that we  believe we correctly correctly determined that he did not non frivolous the alleged denial of a benefit of employment under userra because as we stated the benefit of employment needs to be one that flows to him as a right or as a result of employment with a d yeah his right to be free from surveillance from the government comes to him from the fourth amendment by virtue of him being present united states and not co him being employed by the b yeah so his right or the violation of his right to be free from surveillance is not of our is not the denial of benefit of employment under your center and so we believe we correctly decided that  bill been sectioned possibly and he did bring one of those and it is pending right now he also brought it to the office of professional responsibility in his office or he and his wife did and they investigated as well and i understand it's part of the nature of this claim but  when it came to wrongdoing he reported it to dorothy's and they investigated we don't know where he should go on we take no position or we just say you should not take it to the board you have to know the outcome of that investigation  resignation but that's not in the record here and so i don't think it should be considered fairly addressing his point though that there is no mechanism to retain relief the board again i think we just disagree and that's the nature of the house the work environment cl wave of the actions of europe well what i meant by that and i apologize your honor is under the retaliation provision it does not restrict claims to denounce a benefit of employment it simply bars discrimination in employment and so it would seem that  parcels criminalisation were bars denials of benefits of employment based on military service and that's effectively the discrimination based on military service provision forty three eleven b bars discrimination in employment because of employment but try to answer my question are you saying there is no such thing apart from the hostile work environment there is no such thing as a claim based on surveillance of an employee that does not take place in the work lives what we're saying is that there is no such thing as a claim of an individual discrete act of discrimination or a television the surveillance would not be materially adverse as an action by it far address surveillance inside the workplace and so that things place inside the workplace we're saying he's being surveilled in his personal life to affect his personal rights and that was not in employment so that's not discrimination in employment yes for purposes of forty three eleven b yes it doesn't make any difference material in the us under the burlington northern santa which i don't believe has ever actually been applied to you sirrah it's certainly possible one of one and he seemed to say there's no plane based on a discreet act that if you don't have a hostile work environment claim there's no claim but then you say there's no plane because it's not material it's not severe and employment i had another question about the board's decision it seemed like for one claim of one part of the discrimination claim the order denied it because it concluded that mr kit lens get didn't allege that the act of alleged act of discrimination was connected to the fact that to his military status but then for other claims  the board didn't rely on that theory and i guess what i was wondering is is it the board's conclusion that for some claims mr kit lens alleged adverse acts were due to his military status whereas other things were not due to his military status in one of his very last pleadings before the ministry of defense before the jurisdictional initial decision was rule issued he made one reference to discrimination which had not being more lenient toward him and giving him at least a general discrimination claim or a general discrimination when as we say we also believe we did then and there for the retaliatory discriminatory housework that the board decided all of this the administrative law judge decided all this before any discovery or hearing was done it would help to understand retaliation it would help to understand discrimination both of which burlington northern have set of actually intense issues if under current law we had our hearing so if you're going to be there and this one of the issues that could be reminded is the idea that can't we get the opportunity to establish that this was a material adverse action directed towards him and his employees that i do not agree that there is a distinction as to where the employer the employer because it's the employer who's doing this place is the surveillance device whether it's in here it's at da headquarters  whether it went in that stalled in this house it is the intent of the employer that you look at for material adverse actions discrimination and sarah's criminal action is fundamentally about the intent of the employer the reason congress passed the statute admitted broadly remedial was to get at the intent of employers who are discriminating in retaliating i think it is one of the problems with the way the government is arguing this case is we're getting lost and the reason we get lost is summary judgment there were facts that were presented there were people that were proposed this is in effect a summary judgment before we have any factual basis whatsoever to decide the record the reason we're struggling with ideas whether this is retaliation or not is because we haven't had any proof and so lacking proof how can we prove up things went to baiting with the m s p be their conception of a factual record that we disagree with and so when they say the could linsky is went to