supervisor not wanting to put out the extra money he's denied a few requests that seem rather nominal where's the great that the statute supposed to prevent him from being fired or demoted or  bashed personnel harmed to him what where's that here but ultimately you're right he's been placed in this issue which he is object determination one of the personal actions well subject determination in the statute there is a poster of him placed throughout the building in which employees for warrant not to let mr guard in the building that if you were to return to the building there would be pain of termination believe that the two issues in certain ways are inextricably intertwined and i think the evidence which out that the agency would not have taken that is actions otherwise as i argued in the brief evidence which means that they have any evidence to support their case you lose yes if they have any evidence spots if in fact there is evidence that was completely ignored th and that's tantamount to ignoring it there were only four witnesses the case here either and to have excluded the testimony of one of them all together does seem to be something that wasn't simply not mentioned but something that was deliberately admitted but on substantial evidence rule if someone presents x amount of evidence and it's not rebut it fact that you might have mounds and mounds of evidence against it and even more evidence we weren't allowed to bring in under the substantial evidence rule which is a funny name for it how does that help the fact you could bring in truckloads of files and more evidence once they have met if there is some evidence some credible evidence but the finder of fact is discarded discounted that missing evidence this extra that you're complaining about would have helped you well we believe that the mueller utilized for the rest of the agency for the rest of the organization and instructed them to give to the other organization the speedy testified that mr guard was doing all of these things he did that with a clark would tell you he who hears testimony on a regular basis that conflict in testimony is the human condition we all perceive things differently which they come differently and to have conflicts in testimony is the ordinary course of every natural proceeding i think just because people perceive and state things differently indeed you're under a set of historians could look at the same documents concerning the origins of the first world war come to best lead different conclusions but the point is that the testimony that is objective the only objective witness is simply ignored and excluded altogether then there has to be a net right there is the decision the only objective witness isn't that what the pinder fact have to decide is who's objective and then take a look at other evidence for example from park for this mr gard taking sick leave forty are particularly significant here and why he gets to bring it up forever and even though he is he's received really wants he gets to keep using that again and again well he's using it again and again if you where is the agency were to leave them alone if the merit system protection board finds that they were actions taken against him because of his whistle blowing right yes that's right and they didn't find that they found those are things that happen in real normal course  that i talked with mr fuchs about what would be permissible for a supervisor to take actions against an employee always just short of demotion just short firing and make their life so one comfortable that maybe we can induce them to resign would that be a would that be a course of retaliation that the whistleblower protection act would have redress for it don't think that and in the individual right of action claim which is what mr karr brought that that would be sufficient to establish jurisdiction for the board certainly if the allegation was that there perhaps it was so bad that no suspension and would take those facts into account and that wouldn't necessarily was not considered by the board the board look at this is a pattern that may have group look good some kind of retaliation against  stated previously there are certain personnel actions at the board is empowered to review demotions removals adverse performance appraisals things like that those are the types of personnel actions the board can review in that the board  interview here and it's very much going to be the case that there may be uncomfortable situations at work supervisors and please may not always get along that is you know the congress did not intend for the border for the sport to be involved in  produced in agency response he could have obtained through discovery which he did not seek during any of this time so to the extent there was any error on the judge's part in the not enforcing his his prior order that could have easily statement tell us what your whistleblower allegations are and that was not complied with until november of two thousand and seven at which point the the parties submitted their pre hearing submissions and there was a hearing at which point mr carter attorney had ample opportunity to cross examine the supervisor on any of the issues that he wished to discuss just quickly to address the issues regarding the conflict in testimony of course and mr judge is only required to  material conflicts and much of what mr gard raises regarding his his talents as an accountant and other issues simply are not relevant to the issues of whether the supervisor and agency would have taken the actions  ok i understand he received his regular satisfactory and i'm not sure in his particular agency what the grade creep is but i know one very federal agencies including the uniform supervisor testified that there were other accountants that he rated officer received successful ratings and he explained that in fact some of them were rated maybe on the lower scale of that that he's a tough grader and said that there were only a few of his accountants who did receive highly successful or outstanding and it's also worth pointing out that what the supervisor also testified to was that normally to receive the next highest rating he would have had to have gotten he completed twenty assignments he completed one even considering the fact that he was a trainee that he was taking a little longer to get its feet wet so to speak completed one of the five or six assignments that he was assigned to an administrative judge concluded that in fact the rating of successful may have been generous on the supervisor's part same time many of these here he completed many more there was testimony that many of his peers had completed many who are there was that reference to these possibility of repeated reviews which simply bed said one who went inside to complete it could multiply the figures that were already there by doing the five percent and look can do that with ted or nineteen or even thirty assignments mr explanation of assignments is something that the court heard of addressed by concerning this by considering this conflict between this phoebe and mr mueller again there are only four witnesses in this case here others the administrative judges failure to account for even when those witnesses is something that i find to be very very striking this hogan also referred to the ministry of final issue and yet when it came to enforcing orders he made mr gardner submit fast admissions but he didn't know it required the agency to do the same until mr carter had submitted those passive bits submissions establishing w so had been a settlement ultimately of the case involving the actions that took place in nine hundred ninety eight but finally those settlements discussions clefts and at that point mr guard  covering the judge had simply said he wasn't going to entertain it at that point because there had been no motion to compel up to till that point but of course there was never going to be a motion to compel during the settlement discussions