morning your honour's my name is paula deen her steinem with public employees for environmental responsibility and her representing the petitioner in this case robert whitmore this is a classic case a whistleblower retaliation in two thousand  with more began speaking out about the failure of the agency's osha's record keeping program which he had headed for seventeen years in the newspapers on television and in congress he contended that industries were systematically underreporting for worker injuries and illnesses to the point where the program was actually a sham oh should not only look the other way but they tallied of these falling numbers as evidence of their success in protecting the american worker also in that same year in two thousand and five with more testified in the e o p seen against his own management we cally ation began for the first time in thirty five years with the department his performance evaluation went down and his leave balances began to be mis reported and this was something of extreme importance to him because he suffered very serious health problems during this period there an accounting with respect to those leave balances to determine whether they actually were it accurate yes there was there was an accounting and mr what more testified that it found that in fact he had been deprived of a cracked him with seventy five hours of leave investigation mr morgan was a former agency employee he was known to be hostile to whistleblowers he had in fact made a real death threat against another ocean whistleblower the agency obviously called him in because they knew what the result of his investigation would be the administrative judge claim that the whole this whole horror was irrelevant because the agency didn't rely on the morgan report for its removal however if you just look at the documents that the removal documents they explicitly rely on the morgan investigation they quote statements from it and they say that this is what the proposal actually says it's the basis of the about particular statements in the morning report did you credit this one did you predict that one and he answered no i believe this one but not that one he testified the proposing official testified that he relied on the statements for not not only the penalty but actually for upholding the first charge but then the issue really we haven't got to yet have we the point found by the board was that  even if these whistle blowing was a contributing factor it would have been removed anyway he had alter cations in the office he had multiple instances of inappropriate e mail contact he had unbecoming conduct conduct for a supervisor and wealth that there's a thirty page report written by the administrative law judge on all of that so how do how do we deal with that which is someone certainly can't insulate themselves and become a wholly unacceptable employee just by reporting some inappropriate conduct of some point becoming a whistle blower that is certainly true but the agency has a high burden to prove by clear and convincing they said they proved that it's the whole point is that the the there was a lengthy hearing there were witnesses there were there's a thirty page opinion and they said they proved it and it's not our job to read the adjudicate that evidence ok well i would suggest that in order to find as the board did that there was clear and convincing evidence that they would have taken the action anyway which has to be supported by substantial evidence in the record that's what you're here to review mysteries after rahm's that the board ignored or discounted crucial evidence which undermined the clear and convincing case first of all they although they found that whitmore was a whistleblower and that all although his whistleblowing involved saying that a major program of the agency was not functioning properly wrote e mails with we don't need to go through all the ok so young savory facts that but those facts were all found him we can't change them and don't they be able idealists the agency needs to prove not only that he committed misconduct because that's a given you don't even get to with lower defense until there's misconduct proven they have to prove that they would have taken the same action removal and we contend that they did not prove that escalated it and perpetuated it he didn't find there was some inappropriate wealth to buy used a chicken word to eat but even if you look at the facts as the administrative law judge found them there was no actual violence there was no threat except a conditional threat if you do that again i will do such and such hours a threat of violence skin you can we tolerate threaten that with one of the big points i'm going to knock into the basement there was a jurisdiction in the mets line of cases it is not a true threat it can't be proved a true threat one of the factors is whether it's conditional the surrounding circumstances which here was that he went out in the hall and said call security mr du bois spit on me he wasn't about to commit violence he was claiming that he had been assaulted i mean if in fact we were to find as you propose that that the administrative law judge us erred in not allowing certain evidence in or not adequately considered certain factors such as similarly situated treatment of similarly situated employees what is the remedy that is our remedy to send it back for further consideration or are you asking us just to conclude that in fact that the whistleblower activity was the basis for that little nation if because the agency has the burden of proof from a clear and convincing evidence if they do not meet that burden with more wins that is entitle to corrective action if you find that the record is not sufficient to make that determination because of all the evidence that we claim was improperly excluded and all the witnesses that were excluded on the whistleblower defense then you would have to re mandate back to have a new hearing with that evidence properly in those witnesses properly included but you wouldn't necessarily have to reach that if you decide that on the existing record they didn't meet their clear and convincing evidence bur so i just wanted to go into some of the evidence that the or an ignorant when it found as it can clear and convincing evidence burden was met it never looked at the actual  disclosures to see what potential there had to create a retaliatory motive which is one of the factors they're supposed to look at and this up court has directed in the car versus social security case and the board in the chambers case when you have high level officials in this case the deciding official was the second in command of osha the deputy assistant secretary they represent the institutional interests of the agency and when a whistle blower's attacking those institutional interests there's a motive to retaliate is there evidence that he knew of the attacks oh yes i mean we have a whole list in our brief of a different e mail where he was copied where the agency was people were going back and forth very high levels of the agency going all the way up to the top of osha the assistant secretary for copying on these communications about mr whitmore's disclosures and about responding to them you know what do we say to what he said  we were talking about the violence thread a moment ago that violence was about the time sheets the threat of violence if the if was the violent was the time she you agree out at the time sheets was actually proven does that that mean he has the if clause is satisfied and he's now going to go knock them in the basement no actually the see if when if you ever spit on me again it was in the course of this confrontation of course when morris version was if you ever spit on a guy who was version was he told me that if we weren't at the office he would hurt me so either version it's a conditional threat he wasn't going to do anything right then it was contingent we can tolerate those in the in the federal workforce those are good things no we're not saying the good things and we're not even saying that it wasn't worthy of some discipline what we're saying is that he wouldn't have been removed if you weren't a whistleblower you know another indication of this is that you know these e mails which they claim which they're now claiming were harbinger of violence according to the workplace violence policy they've been going on for al decision right and i think that this court has how do we deal with the credibility finding i think that this this court has clearly found that when you have this high level clear and convincing evidence burden of proof that mere denial by a deciding official that they retaliated is does not meet that burden there's probably never going to want to learn taste and history were the deciding official didn't deny retaliation that is not enough to meet the bird what what about l not actually what he said you know what he said and that if you ever spit on me again i would knock you into the basement that overall agreement was dealing with the with the time sheets right now it was this i mean the altar taishan started with whitmore coming in and saying can i you know can you approve this least flip but the it was not about the time she at that point purposefully spit on whitmore that they were both somewhat out of control and the way that the board has treated and the finding here is like that's fine that whitmarsh conduct was far more egregious than that that was the finding but i think you have to look beyond what was said to what's behind it we do know is there support for it being much more egregious if you like to save your rebuttal time yes thank you  appease the course although petitioner attempted to cast himself as the victim of no labrat schemes by the agency to retaliate against him for whistleblowing what this appeal really is about is his pattern isn't them the reason there's no evidence in the record because a j didn't allow the evidence of that in the record other than mr whitmore testimony i was actually unclear why mr mcdowall with did not have to find its case mr mc the witness to mr whitmore crawford as his leave audit official and that individual never ended up testifying he was not excluded from what i can see as a witness on so i'm not certain that that is actually why there is no evidence of  it and indeed there is sufficient evidence that stansell against the record indicating that if anything mr whitmore was inappropriately using leave he had mr goddard wrote to memoranda well before the morgan investigation these were in april in june of two thousand and seven in which he said that specifically that mr whitmore had seen it his only had been borrowing leave when he wasn't allowed to this is that the right in the record at age ninety nine whitmore represents in his brief that that was somehow under the tutelage of control of federal osha if you actually look at the article in the else that's not true but you're not taking issue with the finding that the whistleblowing contributed something the the issue here is not whether there is whistle blowing that's given i say it is a given based upon the age a finding corrected the real issue here is whether they would have removed mr whitmore anyway and i believe that the most audio years without any incidents without any problems without eddie in fact all of it his reviews were excellent correct then we have some whistleblowing now you argue whether it was about cal osha or ocean but the first act with him saying something wrong about osha activities correct he said he said yes that's where will and are and so is it is it your view that from that point on you could make that employees like philip noxious at work of mr remorse for years they were in the union together she art in july of two thousand and seven right after this is actually a police agent like penn state that the in office confrontation mr dubois she sent an e mail saying basically because of mr whitmore's medical condition something happened in him but changed his own personality sometime around i think she says two thousand five two thousand and six so i think the evidence in the record really indicates that if anything it was with mr whitmore's personality that changed he was confident that we can make a case that this is not tied to any protected activity exactly what protect activity is being gauged in testify before congress working with the chart of observer activity engaged in long after we hire the actually contractor drafted  just says but then that takes us back exactly to what was the connection of what his protective whistleblower activity was and how it was connected to the workplace violence concerns is this evidence that there was a connection between the whistleblower activity and that the that the independent of investigator mr morgan he was he was his job was to disconnect whistleblower activity from the subsequent retaliation and to make sure that his report did just that was what can we put i seems to me at the morganton or with bias  a number of documents pretty well predating morgan's investigation morgan's investigation certainly was there there is evidence in the record that it was not done in the most even handed way and i believe that if anything however there quote the morgan and i would sit in almost every page there's a quote from the mourner but how can you say that you can absolutely separate the two well i think again i'm not saying that you can necessarily one hundred percent separate the two but what i'm saying is the agency didn't need the morgan report there's no requirement but if you would then you should they used it to to lift the charges and if that's the case then the fact that it was completely biased if if that evidence would show that would be something that should have been considered right the notice approach ruse removal the charges and specifications do not quote the morgan report at all in any way the charges aside and the charges the specifications are based upon the confrontation on july tenth two thousand and seven the petitioner continued to send over a period of months to his supervisor let's talk about similarly situated employees means that the strait of judge simply says there's nobody similarly situated jury and that's all we're going to say that yes you're posing council site the whole series of or decisions where actual threats real real time threats were deemed not sufficient to support removal and the removal was vacated and yet we don't have any evidence as to whether or not anybody who was involved in any kind of altercations with employees or who had maybe sent improper e mails was ever disciplined are you telling me that that nobody's ever been disciplined for inappropriate behavior in the workplace disappointed someone in the first instance the burden is upon mr whitmore to bring forth other similarly situated non whistleblowers who were not disciplined he was unable to do so so now there is no evidence of that in the record because he was not able to meet its burden of providing  was that that testimony would have been wholly irrelevant and that i'm sorry that record site is in the appendix ten ninety eight the individual that she claimed was similarly situated with the mandates of a small at the employment training agency which is very different different agency from bush and again i think that the the car factor first of all the as you point out in our brief the car factories are permissive on the agency is not required to prove each and every one of them so  persuasive at least that the action that you're trying to to challenge would be someone within the same agency but your your honor makes a good point and perhaps i'm reading the third car factor a bit too restrictive lee but i do think that the overriding point here with regard to this particular appeal is that mr whitmore proffered certain witnesses and then they just did not they he never was able to the mission of judge alito at least with regard to his water dale to be offered for the s of the the moment happened on july tenth by his testimony before the administrative judge about his own conduct on july tenth she made several credibility discriminations in her opinion that he was extremely excitable on the stand bringing up charges telling they want to remove him after twenty years of service i mean i would be pretty excitable soon but he said he was he was happy he didn't actually act out in violence and actually punch i think it was mr schmidt or if i want to say so several years after he  actually was boasting i'm glad i had for straight thinking back on it i probably shouldn't act on these and this is not the type of conduct that one would tolerate from a g s fifteen employees of an agency who had worked there for thirty five years he was a supervisor at a minute after so i just want to correct a couple points widmore did try to introduce mr mcdowell who did the leave audits and that was refused by the judge there was some confusion because first we accepted that and she refused and he also tried to get in another witness dr frankel who was the person that dr morgan threatened to kill who would have testified to many other instances of intemperat escalating in intensity was the reason he was removed if they read agency had really believed that he was a threat of their high alert pages that substantiated if the agency had really believe that he was a threat of violence and that his behavior was escalating they would have as the agency's own workplace and violence policy directs to intervene as early as possible to have a meeting with the person sit down and talk to them and then if that doesn't work you go on to caress of discipline they do any of that they let this go for several months this was a thirty seven year employee who had never been disciplined for anything he was not warned he was not told his behavior was out of bounds he was not given any lesser discipline but all the sudden after this confrontation was too broad they decided ok we've got something we can finally get rid of this whistleblower and they do some of that and they piled on all these old e mails that they had never addressed before