this is the scoring the first of these is number twenty eleven thirty one sixty five white women versus apartment transportation  may please the court my name is matthew s the time representing the petitioner and white men i want to start by focusing on the issues regarding the settlement agreement and what we believe is substantial evidence of course an end to rast which was discounted by the board in this  case specifically the board's reliance in this case and the alleged alternative choice i e proceeding litigation appears to vince trademark opinion any future claims to invalidate them or agreements on ground well suppose we don't have a situation here in which the settlement agreement that was brought about by coercion in other words the supervisor wasn't saying that the employee if you don't enter the and the major part for the agency was insisting that she was white and be removed from the radar room to the tower that was a precondition for them doing an investigation of her allegations as a precondition for essentially resolving the harassment and threat that she was facing it was presented to her prior to the summer agreement was made clear to her that if she didn't accept this that these issues would not be addressed that you would continue to face the threats threats on her life potentially threats on you know to members of the public in the airplanes and so this situation was if there was cars in our interest we would argue in getting her to agree to that some argue and she was left with no other choice because of the circumstances created by the agency doesn't that that the settlement agreement that is based on allegations or complaints about harassment could be set aside on the area that the harassment created an intolerable working condition in the settlement should should and certainly yes there are always going to be cases if there are allegations of harassment that i get a calendar employee could claim that they were coerced but the distinction here is that nothing was being done and you see that in the bait case as well agency was not willing to do anything to address these issues they were allowing them to go on and essentially fostering this environment of harassment that left this white and with no option but to agree to that settlement which moved her out of that radar room i think another factor that you have to look in and again it's a case by case basis is she was stuck in a situation where they had actually that point put her in a room locked nevermore they all she could do was go to the restroom choosing to ride stripped of all her duties she was in a situation where she had no more options and that's not going to be in every case and it's simply it's a rare it's a high burden for a reason and it's a rare situation but looking at the circumstances of this case i think it's clear and the substantial evidence to support the fact that she was coerced into signing an agreement at the risk of continued threats continued harassment potentially things are escalating so potentially there's no proof that they were trying to  well i think therefore the you can derive that coercion from the fact that they were using to investigate and they were impeding the attempts by the police to investigate allegations of assault that they were not doing the say well you know the employee got something for it so can possibly the price of coercion just like when i started saying that what the option that she could continue to litigate those options are always going to be in place in every settlement agreement and if that's a basis for saying just on those grounds that we're not going to find worse and it's difficult to see any case and i think this is one of the strongest if this is in cordial and this is in a situation where it would be a reasonable person in her position would feel no choice agreement little later on she can to avoid the same agreement that she sought to be valid i think it's relevant i don't think it's controlling i think the other circumstances indicate of the time she accept that agreement that it was a product of corage and and again especially in this case and it may not be the same in all cases because some certainly with a resignation or settlement where there is resignation you know they separate from the agency altogether in this case it was essentially removing you from the radar room to the tower so in away from the harassment or away from the death threats and if she at that point immediately comes out and said well i did you know that the parked cars and i don't want to do this is what i'm all in terri but they put her right back in that harassing situation so she's she's put back right in the situation that she had no choice but to get out of it and that could have a government under your theory how could the government ever settle the case because every settlement with harassment claims  could then be attacked later on on the grounds that they were the product of corrosion what's the government supposed to happen how can these cases it's a situation where the answer the question how could this case be set up under your theory that she was intolerable working conditions she had to say so how could this how could a vining settlement ever be reached under those circumstances if that led to the settlement could be the basis for setting aside will i think in this case it would have to be a situation where the settlement agreement wasn't there of acquirement for them to address the issue that was there requirement in order to fully investigate these claims to act take action against individuals were threatening her otherwise they were going to allow to go on so in a situation where they were you know these these acts of harassment have happened they were addressing them and the agreement wasn't the requirement for her to get some relief from the day to day harassment and the death threats from the potential harm to the public in terms of the aircraft in that type of situation she isn't she doesn't have to agree to the settlement to get out of that intolerable situation then i don't think there's any claim any you know legitimate claims that the i'm going to be settled is if the government gave her the relief  you know that isn't the relief she was seeking stopping it or providing her some remedy for that relief or that harassment whether it's monetary damages or some you know disciplinary action against individuals who get it that you don't have to go that far but the agency  of the circumstances and make the judgment that she that was not a consider two points among reasonable options that a person a reasonable person in her position would consider the option of turning down that kind of agreement given all the circumstances and i don't think an have signed and then that would resolve the fence of corrigan or direct mean there's always going to be an alternative to some there's no doubt that you have a problem with this interview here though i mean even if we were to say if we were the of first resort that we might agree with you what we all we have to find is that there is substantial evidence to support the decision that was made and in this case there as you pointed out there were several things that were cite d in terms of benefits that she received and the fact that she was represented by counsel i mean there's a lot of factors that actually support the conclusion that that in fact it was a voluntary agreement because i don't think the evidence at the at the court is rely on the what about the fact that she had counsel when she received several benefits in return well again i would i would point to the fact that every egremont is going to have some benefit to the person who signed it and whether you are represented by counsel or not the on the fact that will she have the option and that accounting of will you have an option to accept a set of resentment or continue to litigate and in putting it on those terms there's always going to be an option to continue to litigate and relying on that as well she had two choices i don't think it's fair i don't think it's one of us have substantial evidence and i think it ignores the evidence that in the overwhelming evidence that this is a proper course of i also think the board failing and this sort of judge failed in holding a jurisdictional hearing on this case there i think the of calamus by then the fisher here made non pros allegations to establish the issue of alternatives or lack of voluntary as and i think that should have been taken up as a jurisdictional hearing to determine whether offering having been improperly gone beyond her and to the of the general employee base a large and in december she she was offered  maximum would likely be from i guess would be january fourth until april fourth but there still would have been some period of delay between when she was first offered the party position and when it was ninth and she was already found to be qualified i think that that the light from the summer nights april fourth that's on reasonable the way out of the circumstances when the position became vacant less than a month later only reasonable delay that leads to an inference of retaliation i think that the timing of course you know this there hasn't been discovered on this issue but the timing of it and the end result less of the timing in relation to our prior complaints and prior disclosures more on the fact that predicates variation as brought in some agreement didn't relate to the timing of when it occurred and i think that's why it shouldn't be precluded from being an issue in this case you are you're you're getting appeal the yes and i don't think there's the court correct that aside that that agreement only provides for private consideration and provide for a timely promotion or promotion at all that matter and so the issue of the promotion and when that occurred was completely retaliation but that the factual finding that there is no delay no damages is dispositive of the whistleblowing retaliation claim but it's a little bit difficult here that mean you've got to you're saying you're relying on what you call the factual findings by the new jersey court had dismissed because finding he was not an employee but then they couldn't claim that he served another role in the district court so that actual findings the second circuit help was entitle to t action that actual holding was that it was meant because she suffered no damages and that she received the property consideration as she was due under the settlement agreement which is distinct then if the district  stated well for example this is over the jurisdictional limit and this is in fact a type racket well what courts just of course are always allowed to look at special issues if it's necessary to resolve them for purposes of determining their jurisdiction here the question was if the court had jurisdiction over a settlement agreement and when the court ultimately said i don't have jurisdiction over the settlement agreement because the settlement agreement wasn't breached wasn't that really a summary judgment determination  be true but the minimum it seems to me that the district court's decision was based on two alternatives gran's one that she didn't have any further rights under the settlement agreement and second to interpret it generously that there wasn't any damage and under the second restatement where you have alternative grounds you can't rely on collateral estoppel as to one of them and we've i think approved the second restatement how do you get out of that that's a problem what about the what about the someone really what's the government's position as to whether so much agreement like this or enforceable or whether you have to inquire there's no allegation that there was harassment specifically designed to require asylum in the system workplace harassment is a settlement and then the contention that the settlement was under duress because the harassment was so bad that she had no choice other than the stuff that the government believes that that states a coin where is the government's position that a settlement agreements a settlement agreement unless you can show that the settlement agreement self was the product of the rest  any kind of challenge in every single proceeding and here equities and the facts and circumstances surrounding the entry into the settlement of settlement agreement show that that is the correct result in this case is to honor th plans that she was kept in a room for two days but the t v locked i don't know but that she was kept in a room and stripped over duties or responsibilities and this is following her  her allegations or her disclosures of what's really troubling safety concerns in the airspace of america and she says that the only way that i could stop and get them to address those questions by introducing general and various components of the f a a were indeed looking into her allegations in fact on page fifty nine of the record in her affidavit she says that she asked to be put on in minutes straight at least so when she was put on administr the street of leave so that she could be out of the situation but every indication the f a a was actually investigating her complaints and seeking to resolve them independent of what was happening with her complaints so again i mean this court doesn't necessarily look at the facts or no vote but there is evidence in the record that the government was indeed investigating her complaints and put her on him in a straight of leave at her it was administrative leave because she had stated that she felt and safe in her past environment what she laid out in detail in her declaration again she didn't know how long to be in that situation but there's no indication that she would be put on in there indefinitely at that particular point i think that the government was trying to respect this whiteman's wishes and her safety as opposed to trying to coerce her into entering into any sort of settlement with the government and as a criticism no but it there's another point which is that she tried to enforce the settlement agreement in two thousand and four so that very agreement now that she says she was coerced into and that is invalid she in fact went into district court and tried to sue to of course its provisions it appears that miss whiteman does not want to accept the benefits of the agreement she has not claimed that she should return the four hundred hours of restored leave or the annual leave or that she should refund her attorney's fees and start over which is claiming is that she wants to dispense with the parts of the settlement agreement that now she doesn't agree with which is completely different than from the beginning her claiming that there was coersion in entering into the settlement agreement and finally as has been pointed out she did receive benefits i mean she had this settlement agreement benefited her and munches it to the agency she received prior to consideration for the promotion and that's it before she's not asking now to do the prior deal with consideration that she received she received a leave i mean four hundred hours which thousands of dollars attorney fees seventy five hundred dollars that she received substantial benefits from the settlement agreement and based on those facts and that evidence then the amas to be properly found that she  so the minute the vacancy occurs she would have received the position what salary level would she have gotten at that point under those circumstances there was a supervisor salary it appears in her district court complaint that the a in two thousand and three in december start to recalculate ing how it supervisors pay but already in january when the position became vacant she wouldn't receive the same salary that she received in april two thousand it was sorry in jan two thousand for she would receive the same salary that she received and it will two thousand and four so that is my question is the salary dictated by the date on which the vacancy occurs or by the date on which the offer to fill the vacancy is made on the date at which the vacancy occurred because she would not have been holding the position at that time the fish of the salary went down in december yes your honor it was calculated differently so the fact to her was that it went down i  and correct me on this i don't understand that they're now complaining about the differential ready to sell my understanding is they're saying lie between january and april deprive her of money that she would have had if  start well it's really and that's what you understand them to be saying yes and that's going to really unclear because in her m a p b action in the initial complaint she claims that there is a seven hundred thousand dollar over seven hundred thousand dollars difference in pay that she would be entitled to under her with a glowing action so in order to reach that figurative peers that there is some claims or differential is ok but it's not clear from the briefings what i'm out there actually seeking  claim in her district court complaint was that the rate of pay was impacted and there's evidence she submitted on that i believe the claim now is that and i believe that the whistleblower aspect of it is that that's the way result in the three months  that we're talking about the difference between the patient was receiving and the patient would receive had she gotten the promotion for those three months or worked in that yes for that one issue that is the extent of the damage but what's what's that to close here i just want to focus again on the circumstances which i think were directly related to her signing that settlement agreement and and the i don't believe there's evidence in the record that suggests that the agency was investigating these allegations of harassment and death threats and assault to the contrary testimony of or the declaration of mis whiteman clearly states that even agencies and i g investigator had explained to her that while she was there they couldn't do anything to investigate the claims they were being blocked they couldn't send people to jail was a direct quote from her that she recalled the investigator saying and so it was a situation where the agent who was making clear to her we're not going to address the fact of your life being friend or witnessing these operational errors putting aircraft in danger we're not going to do anything about that we're going to obstruct the police and we're going to tell you that you have to get out of here before we're going to do anything about that and then on top of that they then not of her request they put her in a locked box her room put her under a supervisory monitor tell her that she's only allowed to leave to go to the bathroom that she has no assigned duties and when she asks how long that's going to last they don't have an answer for and that happened a days before they basically tell her that there's a settlement agreement you have to leave the radar room if you don't do that that's the only option if you don't do that we're not going to be able to do anything to address all these them to determine based on a number of and usually they have a candidate that they and then have to narrow it down to five or three make a best qualified list then determine that may be interviews that's where the ninety two hundred twenty days comes in  this case where it's only one candidate that's the only one's going to be considered she's already been determined to be qualified the vacancy was announced elect over a the attorney was contacted the following day or two days after that so we're looking at almost  delay the connection time between her whistleblowers voters and when that the way it happened and the fact that the way is on a reasonable and not accordance with what we are sure to happen and for non pros allegation finders fiction we