on the calendar before the panel today however four of those cases are being submitted on the briefs without oral argument i will just for the record note those four cases the first one is number two zero zero seven one four four five in re step out for the second one is number two zero zero eight three zero seven one white versus the department of the army the third one is number two zero zero eight versus three one dash three one four three motley versus the department of the navy in the final case this being submitted is number two zero zero eight five zero four zero zero watson versus the united states again those cases are being submitted on the briefs without oral argument the first case in which we'll hear oral argument the smore ning is number two zero zero seven dash three two six four correct and you understand how the lighting system works in a while since i've argued but i'm sure it'll come back when i look at i'm sure you remember well you can step up to the podium and start your argument whenever you're r gate deference to testimony would be argued with dispute it abort binding would do not supported by substantial credible evidence are subject to review by this body and in order to you say that it was not credible but the a j her b s to testimony was free to believe or disbelieve it and did so and it's a very exacting standard review how do you get over that standard of review that him instead of law judge in family and her discussion of a review of credibility to address certain factors which go directly to santiago's credibility and her truthfulness specifically in her it minutely false statement to her supervisors concerning how this interaction began and the nature of the relationship that she maintained with mr foster built to examine the law on sexual harassment which is by its very nature essential elements of the claim of the chart for which she was removed she didn't belong to determine whether or not the conduct on th past one of the parties listening to whether or not the relationship was such conduct was necessarily uninvited or necessarily unwanted well if your view that that necessarily has to be a legal conclusion of sexual harassment in order issue of the charge an essential element of the claim is necessary and following the one go it's a good time to go into that and let me ask you though mr townsend you you in response judge cross question you indicated that this was a sexual harassment case why should you have two charges yes there was a charge of of inappropriate conduct in the workplace i think and then there was the perjury charge but it really wasn't  as i understood it a sexual harassment charge i mean a lot of the conduct the took place particularly between sergeant santiago and your client appears to have been essentially the you know the meetings they had  and so forth and and the testimony of the contractor group these various occurrences and it wasn't so much she was being harassed as he along with her was in gauging in inappropriate conduct in the office i mean doesn't that make it a little bit different from the sexual harassment it doesn't seem that his then says towards her were totally unwarranted but rather he was doing in the office what he should have done in private yes i would agree except doing that in looking at what colonel f rituals the deciding fish will factor of course from what he saw it proper penalty it specifically specifies a need for immorality indecent this or this crystal conduct to be some factor in determining that the employee has engaged in conduct that is an unbecoming the federal employee whereas we want to have that conduct without harassment i think the longer supports that but necessarily i believe require some statement as to what constituted immoral constituted indecent what constituted discretional conduct and there was no discussion on those that was consistent with if one were looking at a case where it was a matter of racial discrimination or an allegation of a statement that was racially charged with a border bill to make a finding that the statement was in fact racially charged or racially discriminatory they this form that ultimately had to decide that it was improper to take a removal action in a context where perhaps the statement was racially charged with the greatest penalty it was reasonable in a context where there was no alternate finding that statement that was racially discriminatory should be something short rule bringing such a harassment back into the context looking at the proposal to move paragraphs to d to be in for a they all speak directly to sexual harassment in two  in the specifications for the chart there was an allegation that miss dash told investigation investigators rather that comments concerning lace constituted unwelcome sexual advances it vance's rather pardon me action which gave rise to that charge were specifically dealing with sexual harassment of people where does that lead to that and then lead me to a contest that the nature of the behavior being unwanted or uninvited a necessary component of that classification in order to make a make a finding that this was conduct unbecoming regarding sexual harassment you must examine the sexual harassment contests and title seven is properly defined as the bounds of what context what actions are behaviors constitute unwanted behavior or improper behavior in a context of sexual the sex there is some concern as to whether or not the conduct in fact occur certainly with respect to specification three it was a clear denial that he in fact took the actions which gave rise t commander at three testified on page fifty six of the transcript that when the matter with brought to him he was informed that santiago and costa were friends whereas it appeared that at least is latest september october two thousand and five that durban an alleged sexual encounter within a scope of those actions the context for the administrative law judge to believe that it was reasonable to believe that hundred continue would you want to hold save your retained five minutes under the surface and good luck doing ok and quickly as possible because i think the rationale decision maker notwithstanding the fact that a set forth in argued specifically in our brief is something that was not argued in the brief that in order to address the second factor that was used by the decision maker that the complaints claim that oscar was overbearing and intimidat testimony in her testimony on page seventy three that she would never threatened or intimidated lost or was known to give people hooks on page sixty five that she did not feel threatened by it on page sixty five and that was the only specification with regard to miss dash of the allegations concerning physically disappointed that she was not fulfilled by mr foster that doesn't sound like someone who was threatened by mr foster that his return to the environment would not have caused a rift that required the removal of mr foster and last  the testimony of this in the record or relied upon by mr foster only goes to whether there was a flirtatious relationship in the workplace between mr foster and misaki aagot it doesn't discredit protest mode relating to the allegations that issue specifically the charges that were made against him and he was a contract employee working close to send it to their desk and the only thing he alleged at his testimony honor mr johnston's testimony does not make miss sunny august testimony inherently probable it does not in fact contradict it with respect to any of the allegations an issue or an appeal the only challenge she makes to miss on the august testimony conduct in the workplace the thrust of the meat of it was was allegations of sexual harassment and i what i heard him saying is that there doesn't seem to be evidence of sexual this initial review that argument was not made so that's a brand new argument today and also your honor i don't think that conduct unbecoming can necessarily not include  order those were the charges that were made and i guess the statements that were made by the agency the administrative judge did not make any files relating to sexual harassment and the evidence was sexual in nature it's hard to separate the two but here the allegations that issue were conduct unbecoming forrester at the hearing she clarified that missed doc was walking by her office and miss sun iago asked her whether the rumor she had heard were true relating to mr foster neither of these issues make miss august testimony relating to the facts at issue in arrow probable there's nothing inconsistent there's no exaggeration no self contradiction mr foster has a history of this behavior he was counseled several occasions by colonel clear that she brought the issue up of what would was happen with what was in the picture she said you know i hear that you're talking about a pitcher and in fact going back and the same page when mr johnson testified johnston testified rather scuse me on page one hundred twenty four that when the issue came up there were point to a party that missed doc had invited didn't they reviewed the website  dot left as a a link to the party that she was having an and specifically she brought up the issue later with respect to the pistol range it was absolutely nothing sexual about the statement and if these are issues that are going to conduct unbecoming an officer at least with respect to specification one charge one there is nothing that is either indecent or immoral which if we're go statements i think it's very clear that if she lied in the beginning about how this began and her relationship in the nature of the relationship that was going on she specified why the relationship ends it appears that this was a destructive old formal p  or who created a situation found evidence to support the situation and much to do the system without adequate safeguards the administrative law judge it still year to examine these factors remove reversible error in a context that she was not permitted there rather she did not reach any conclusions concerning the rationale of the decision maker or his move