the first case is number two thousand and eight three zero five three franklin against the department of the treasury sure neil move again you're ready agreement he said that i don't want to be supervising more if this is how it's going to be and as part of the settlement agree mr franklin agreed to dismiss it's been in the case so what ended up happening is once it was all done he still became still and you think it matters it makes a difference i mean if this supposed to mean this all occurred at lunch time if this conduct occurred with respect to some women working at the wendy's across the street if all of this it happened in the winds across the street as opposed to less or the owner of the building in which the i r s office was hottest was just dismayed at the allegations by the security guard and sent the i r s a letter and says you're out of here in thirty days we're just not going to put up  our security guards are not happy you're out of that they assume that would you then agree that there is some nexus between what he was doing and the efficiency of the service but the look question becomes be pretty substantial it this correct but in that it would in that particular case but in this particular case that did not happen i mean let's go back to my hypothetical and see if you can answer that some would you agree that in my hypothetical one could make the case i'm having a hard time saying yes you're on because i don't think i don't think well it isn't there i mean his conduct led to the eviction of the i r s from its offices ok is we're we're going too far i mean because i mean here's what happened me here's what we're talking about here we're talking about a a security guard that allegedly that mr frankl stand about only stand about her work station i mean that's the that's what he was chart i mean expresso occasion for was he was standing by the workstation and and the manager of the bill that said i need to talk to my security guard so she can appear not to be distracted and he left what is conduct unbecoming about that i mean to me and that was the question i asked the minister the largest that i mean if you say not one i mean his supervisor if you look at the appellate argument on paper his supervisor specifically said she never told mr franklin that he could not stand by the guard station his supervisor supervisor said ok so what's your argument here are you arguing that the level of his conduct wasn't sufficient or that there was no nexus because let's assume that hypothetically that what he did we could all agree was improper inappropriate just respectful whatever then do you agree that that stems just enough of a nexus with respect to the efficiency of the service you know at this i mean that's the second part martin i don't think i mean  definition of unbecoming was somewhere unattractive unsuitable detracting from one's character or reputation creating an unfavorable impression you have any issue with that definition it's a two prong test or you're on the that's part of it was rude and it in this particular case were saying he was rude if he was rude then of course that could be tracked from the the agency but the first part of it is how does that affect his role as a federal  your argument that this is not particularly heinous conduct but let's assume it was really really serious sexual harassment  touching whatever you want and it occurred on the elevator on the way up to his office is it your argument that that's fair game that that that cannot be the subject of disciplinary action because he hadn't gotten to his floria know that conduct is criminal well ok but let's assume it's a little less than criminal but it still would be we would all agree that it's a lot worse than there a nexus there and virtue of the fact that everyone knows that he's an irish siege and that it's in the context of the building where the iris you like we said i mean start talking about the work environment we got to talking about how much protection he gets because in a work environment you get protection for instance my early analogies of talking about the workers compensation benefits if you start getting benefits you're getting paid and if you do something why are you getting paid you should be held one hundred ten percent accountable for those those act you get to go back to my example you is it your argument that as long as he has stepped off the elevator and in fact looked at and in this particular case it was not strictly looked at i mean we're talking about we're talking about a situation where mr franklin the security guard said mr franklin never touched or never tried to kiss or never said never whispered in my ear never said anything to write him in it clearly his presence was on welcome and he remained notwithstanding her efforts to get him to leave you got to take the testimony of the other witnesses the ones that said that they stood there for forty he never heard mr franklin say anything and he never took her to mr frankly even the building manager said that she never told mr frank to leave you know and i haven't i can ask one question you know is there anything in the record it seems like there was no  was no disagreement that everybody knew having one was here and start that everyone knew who everyone was here that he was known to be an employee of the i r s you have is there anything in the record indicate i use most federal employees not particular arrest employees are some identification badge around their neck and they didn't hit you know that was one of the art that he had an e o agreement on our follow on that because the agency refused to give a mighty bad so he did not they did not know he was not an a r s and basically on may tenth he was somebody must have figured it out eventually right because somebody wrote to his supervisor or whoever i mean there were some contact with the i right i mean and that was like i said that was on make tent but i mean actually mr frankland told the security guard when he first got there that he was coming there to work at our estimate they had been carrying on casual conversations about whatever me she was trying to find different out the you know it's i mean that's what it all turned out please the court the decision of the m s p should be affirmed because it correctly determined that there was a nexus between mr franklin's misconduct and the efficiency of the i r s the service and because mr franklin's kind that were actions that were unbecoming what does work i mean the did the agent kept repeat repeatedly said if this occurred at work what in your view does that mean would that extend to the sidewalk outside the building the restaurant across the building what is at  work in this context whether at work when extend to what occurred outside the building there may be at that may be a more difficult case depending on the hour of the day what why he was across the street but in this case because the government present evidence that this did occur during the work day and area in fact that pursuant to five c f r five five one point four one one b that even his brakes are considered on duty time and and that mr franklin provided no evidence to the contrary that he was doing this outlined or on his brakes other than that's a different a little bit of i mean that's take what you said but i didn't i wasn't dealing with the temporal aspect of that i was dealing with the physical location aspect of it so i mean you would agree i mean what he did when he even if it was on his lunch time would you say that would be considered at work because his lunch time was still considered on duty time we've certainly said that but what we're talking about here is i think isn't the equivalent of building up the windows the everybody can agree to that yes or no so what is it about the building and the efficiency of the i r s first that mr franklin was directing his actions towards the security guards of the building such that the security of the i r s employees within the building could be affected second the is contact with the building and business relationship with the building and the fact that they had leased space from the building and that the building manager specifically at said to the i r s in her letter we cannot have this person building we cannot have this conduct in our building and thereby impacting the i r s as a relationship with the building manager and the place where the lease their property from additionally there are a number of times that the people in the building contacted various supervisors of the i r s thereby diverting their attention from their regular duties to what mr franklin's actions in dealing with his conduct in firing as you're just we're going to take that into account we have to also about legitimacy of those complaints and what if you have some crazy landward who's always complained about everything and so it could be that an employee who's perfectly within their rights and doing things that are not object to simple tending reasonable administrative judge determined first that the government had proven that this conduct was unbecoming of a federal employee once that was determined the a measure of judge and then went on to determine whether there was a nexus or connection to the efficiency of the service so getting to that point f because the reputation of the agency was put into question based on mr franklin's actions and a many of the people within the building knew that mr franklin was an i r s employee and that the building manager says that she was not aware who she was and asked one of her other employees who is mr franklin to which she was told his name is mr franklin he's an employee of the i r s thereby imputing the two together and really  relating his conduct to the reputation of the i are asked it was well known in the lobby of the building who mr franklin was employed by the fact that the i r s can would continue to maintain its employment after it was asked to discontinue and after it was told that his employment was hindering the security of the building when again impact on the reputation of the i r s as an agency there is also an issue that mr at franklin was in me and lobby and specifically in contact with tax payers and the public who walked through the door and the i r s does have a duty to as a federal agency uphold a certain are three floors of the spilling i don't know many floors the building has but i assume there are other employees of other agencies or you know and to teams in the buildings well yes you're right it's not clear who else was in the building from the record but it assistance in finding the taxpayer collection office do we have anything in the record to indicate how much is building yes i mean do they have three floors of a fourth floor building or do they have three floors of a sixty five story you know are there is no  the agency mr franklin's conduct was clearly unbecoming under the definition used by the m s p unbecoming conduct is that which is unattractive unsuitable or detracting from one's character or reputation or creating an unfavorable impression profanity with respect to any of his visits to the security guard in the security guard area who know you are but the you do you agree with m o'neil us explanation to us of the relationship between the first incident for which he was suspended and the suspension for the failure to attend a sexual harassment training class your i did not have that information i do know what's in the record is that us versus and dead for three days for harassing employees within his own testified to in regards to her security guard she specifically said that miss this had a bad temper she was rude this is on page fifty one she was rude to the customers pay for if they want to disobeyed if the security guard there's a lot made up with the minister of logic has made a lot of the fact that the specification one where mr franklin said supposedly said take your country ass on his own she was on the elevator that was what they said that mr franklin said in regard to the security guard if you look at what the manager of the security guard described this security guard it we only heard the one side of the story mr franken said the conduct never happened because that's what you specifically said it never happened but the question becomes if it happened that security guard out of the building the building manager wanted the guard out of the building is what she wanted now what's interesting is i'm not i'm not understanding your point notwithstanding the security guard may have been on vacation discredit the finding made by the administrative judge as to whether that statement was made i think that absent just overwhelming evidence that this was not true that it's that's  like i said to mr frank the supervisor is stating specifically that they told mr franklin that the there they didn't they didn't want him in his own workspace talking to people in his workspace period because he would but and they would have conversations he would but and as a result they told him he couldn't have conversations at work unless they were late so he basically he was told that he could take it breaks away you should take it breaks away from his desk so basic take breaks in his lunch away from his desk and you know that's on page fifty six of the hour appendix and what mr franklin did is he stayed out there he just stayed away from somebody would say something to him and he would say you know someone of say the security guard say hey when you show that person this he would take the person around whatever but the supervisor of the manager of the building specifically stated that she never told was that frank or that he couldn't