isn't that right in my perception of the agency's argument is that this is an action that would have been taken anyway that some of the action had already been taken before the whistle blowing occurred and accepting that at least some of the communications can be called whistleblowing i do my perception is that that is the strongest  that must be overcome that's correct your honor and i'm here to overcome it and i can i would agree that there is some action which was taken to mr emory mochrie before february first two thousand and five i would agree that there was some disciplinary issues that had to do with the rude behavior and of the sort in the oak ridge facility lab may of two thousand and three however i would submit to the court that the reduction of the duties in particular his failure to have to apply that particular regulation regulation that he complained about in his protected disclosures was not addressed in any way shape or form by the agency in this case in the course of reassigning his duties and in fact when they had reassigned to studious what they had done is they said that because he was having some people problems or personality conflicts with these other people what they said was this we're going to remove him from that project because he can't be a good representative we're going to then change his position description and we're going to make this person effectively an expert whose job is going to be to increase his level of knowledge nuclear science he's going to lead a team of experts for nine months i believe it was i think it was e longer up until from june of two thousand and three disappear of two thousand and four he's going to read this subject matter experts to review safety documentation of the reactor and that was his job he complained in october of two thousand and three november of two thousand and three in february of two thousand fork about the dangers that he perceived that he had a very inflexible person when it came time to reviewing regulation and i think the very crux of this case is that it is it's not logical that someone with that position who they testif extensively could in their testimony that they go ahead they craft a specific job description just for him they're saying that this is the person who we want to carry out these duties he's the right person for us and then they send this e mail and they claim that he's he's actually the very wrong person for those that essentially that that this is someone who's inflexible and this is someone who should be working on projects like that because you can apply the regulation and i think that what happened in this case was initially there was some confrontation at oakridge right or wrong the administrative judge pacifically said that he wasn't going to retry  what had happened down there and that granted it there was a letter a reprimand was probably deserved and he was taken off that project but what what what what is at issue and this case is examination do you wouldn't want this person leading a team of experts he says yes i wouldn't and that was exactly what his job was to do so i think that because the standard here is clear in picking what exactly mr fisher was his secretary abraham this is on the joint appendix page four forty six and four forty seven where he says that there is a retaliation this is lawyer who wrote the letter appears to be driven not only b review team for the for the t s a at mr low the reacted that am a mockery delete safety significant findings from the executive summary of the t s a and that he refused to do so in good conscience as a professional engineer the lead safety recommendations found by a team of subject matter experts think that number one he references a specific regulation i think it's intuitive anyone knows that this particular regulation is not would would understand this to mean that there was some serious safety issue that he was concerned about about this cask and that thank you was instructed to he's still working there now that's correct and his pay has these great unpaid not been reduced that's correct he's just he's just complained about is about the nature of his duties that's correct that it's a significant reduction in the in the duties has the expert witness at his trial had testified at the administrative level that essentially wasn't doing duties at the grave that he was supposed to do and also that it's common knowledge really that the agency has set position descriptions that the employee has to fill not that that's tailor made for that employee that that they're saying he's performing duties that are way disputes with mr m r roky regarding his duties and the way to perform them began long before he was placed on the new position description in january two thousand and four was after that they said i was the ideal man for and then they took me out of that job after i had made these disclosures with respect to noncompliance concerning the regulation and that's what you heard him say right now what is your what is your response to what he said when he was already certainly well mr m r roky when he was removed from his position as a program manager at oak ridge was placed on a detail set of duties that was not a new permanent position description that was in june of two thousand and three the that job because he was the one who had started it and he did not believe that it was a fish and to change horses midstream on that however in january of two thousand and four a new position was drafted for mr ammar movie which was to serve as a subject matter expert in nuclear safety he was placed upon that position in january two thousand and four however the hyflux isotope reactor project was continuing until september two thousand and four when by mr arrow keys on testimony the project ended and there was nothing further for him to do he could not continue working on that because there was not any more work at that point the agency began to look for new opportunities for mr amrozi to perform additional duties and the record has evidence of negotiations between him and his supervisors about what duties mr ammar roky believed was appropriate his new position description was to serve as a subject matter expert on nuclear safety and was determined to be a g s fifteen position based upon the position description by human moki is forbidden from ever commenting on ten c o r eight thirty again the of an instance that his supervisors believe that he was not capable of applying a graded approach which requires you to take into account the possibility of harm the magnitude of harm and that he was deficient in applying that graded approach to older facilities not that he could never comment upon the nuclear safety rule in any context whatsoever and that actually goes back to the oak ridge incident because the disputes that caused the rude behavior were based upon whether the graded approach of the nuclear safety rule was being applied in addition the board considered the fact that the agency really didn't have any motivation to retaliate against mr ammar mopey the alleged protective disclosures which were sent to congressman markey and secretary abraham there was little evidence that anyone of the agency had any repercussions as a result of them in fact mr low rookie supervisor was asked to write a letter back to mr r room okies attorney on behalf of the department of energy saying that mr ammar rocky was not being asked to violate any rules or regulations and that the department of energy was fully complying with them and that's about the extent of any action that occurred to the department of energy as a result of the protected be a legit protective disclosures for these reasons we believe that the board's decision that the agency established by clear and convincing evidence that there would have been the reassignment and new duties regardless of the alleged protective disclosures are correct if there is no further questions  that i think what's very clear in this case if you look at the letters of reprimand that he got and reassignment in june of zero three there is absolutely nothing about his inability to apply regulations i think simmons you were rude to this guy and that guy that all came later and the evidence with that e mail that suggested it really tells you that the again it's it's just one of the things that the administrative judge he doesn't put this in his opinion at all it's like the mail doesn't exist it's a it's a very critical piece of evidence and the bottom line in these cases is this is if this were discrimination case and there's an issue of you know did the did the other mcdonnell douglas did it disprove the theory or whatever that's one thing that that's not this case that they have to show by clear and convincing evidence that when they took away his duties of now you're not going to play regulations now you're not even going to do would would what this new fang is that that