this case is about a campaign of retaliation against an employee who successfully brought the e o lawsuit their stance five years it's insidious retaliation and serious retaliation kind of relevant to include the non selection for promotions taking away of awards she'd been mean for refusing to send her to command assignments and to additional training and they particularly when it came to the testing center only fifty percent of the weight was given to the standardized testing that they were using the other half was the objective rating officials knew who they were grading and they have offered nothing in the record to explain how the subjective portion of these decisions how the case as a was a value maybe i didn't see that i don't believe it was turned over in just covering it was discussed in the depositions of the witnesses saw that but in terms of what it actually said we don't know do we know you didn't you didn't put that in the record you do know i didn't and the government didn't either because your partner on the nd print prong of mcdonnell douglas it's the government's record that is correct and the government's representations regarding those that testing system also is limited even as to their prove up i don't believe that they showed in any way what went into the subjective portion they didn't show what questions were asked how the candidates were scored that is discussed in that it's quite subjective there's they come back and say well we had all these reasons to do it but what they cannot say is why this discipline decision is so different from the treatment of other employees who have been involved in far more serious matters that record is in the trial court docket  not proposed and then we have a tool testifying that this is the only employee o'toole has ever recommended for demotion despite all these other things that happened in a law fee only one mr turned and why what's your best argument that you you exhausted your claim about the january suspension because it doesn't seem to be part of the the best argument is that she was talking to the ego investigator about that suspension right when it happens the she meets with the agency counsellor talks to the agency counselor on january  nd two thousand and ten at that time it is discussed that she's been proposed for the motion and i'm just watching my time here and the agency within days says we're going to suspend you we're not going to allow you to stay that pending mediation even though she grieved it and then if the purpose of exhaustion rules is to allow the agency an opportunity to investigate and resolve employee kinds we know the agency investigated and we know that starting from her report card we know that the agency has in its report discussions of the discipline and goes on to state in the report that one of the remedies mishan a relative was seeking was the reversal of doubt suspension so while the agency stated in its letter we're only going to accept these two non selection claims it went on to talk it was supervisors to find out more about what happened in that discipline and know that ms had a rose one of her listed remedies was reverse the suspension it was unfair and it came after e o process had started up statements from her she talks about the disparate treatment that she received in that suspension and asked that it be reverse of the agency knew the agency had the opportunity to do whatever it wanted to do with that in terms of did she as facts about the cl i just don't want to misspeak so i'm i'm being careful your honor i believe that throughout the process she does i will i can't state i don't want to state anything that absolutely i'm not sure of i can't remember the exact language or not and there's a complaint but i know she tells the investigator from the outset i was proposed for this to motion that is for certain because that's related to them taking away her law enforcement powers and discrimination or on the other hand and appropriate reaction to the top person in charge having done what was alleged to have happened at the jefferson so the disputes are not about whether it occurred to disputes or about the reasoning behind right and your best evidence for retaliation being the reason in that case is why the timing of it coming days after the initiation and also the history and stover making the statement to one of her employees that was also damning is she days after she files her complaint the proposed discipline is reduced would give you some time for ok the proposed discipline is actually stover says to him very tellingly you're not the target so miss carol is the a target from the outset we also have here the agency ignoring its own rules in pursuing the discipline and in executing the discipline it takes them eighteen months to issue this when it should only take twelve months don't use the internal affairs process which they were supposed to use and that's discussed also i believe in docket number one thousand and four they went around everything and what when you see that type of pattern of you having a supervisor saying what his intention is and then you have a pattern of breaking its own rules to effect discipline that is particularly at this stage of the brigade taking the facts and the in had a relevant evidence that this was a retaliatory decision the last piece of evidence that shows it was retaliatory your honor is not they refused to stay it and again refused to follow their own process when she missing from those are not in the record they were not requested by miss harrow during discovery and importantly they were also not asked about in any of the depositions there are discussions of the k s a's in the depositions but the focus of those questions is really just on mishandles questions about whether or not the cases were blocked did the reviewers know who they were reviewing that's really the entirety of the take your honest question and this court case all about not being overly formalistic or focusing too greatly on technicalities but at the same time an agency needs to be presented with sufficient information to support explain the crawfords sufficient information to put the agency on notice of the claim and our argument on this point is in this kind of road directive the agency to the attachment and that attachment did not raise we contend did not raise either the demotion or the suspension and this discussion about whether or not a new process you could be started as we explained in our papers i think is is secondary to the real question  it is on the complaint form i think that it is important to draw some distinction between the allegations and the factual explanation of the allegations that are included in that attachment and the reference to the remedy reference in the remedy section and we would suggest that that reference in the remedy section should be treated similarly to the comments that this court has found insufficient in marshall and insufficient in crawford for instance in marshall a reference was made actually two references were made to an employer attempting to reply to you trying to terminate me and he court you said that this it's secondary you know whether there are a whole new process needs to be started  question is whether this discipline is an issue and in some sense the exhaustion question seems to be secondary to the question whether there is evidence in the record of the retaliation in which the place of complaints and i know that this was litigation and that decided this to court precisely on the not exhaustion ground but is there evidence and it seems like that that all of the adverse actions that are complained have stemmed from the same theory about retaliation and the government argues that there isn't evidence and prevailed on that on the on promotions and then on this i'm used to command responsibilities for want of evidence of patel years and doesn't that same conclusion apply to around at the time that the discipline was enacted in fact was not here had retired more than a year before the proposal to demote was even issued let alone the ultimate suspension so we would agree wholeheartedly your honor that this i think the question for us would be is there dysart course decision on the non promotions and non assignment to command responsibilities does that include any treatment of this question about the way the jefferson memorial event was handled and i thought that it was dealt with there so that there is some basis and in the district courts treatment it's not anything further  you can have two minutes the government focused just now in their argument and they've done this in the breeze too about the temporal relationship and the the case law that they're citing regarding temporal relationship to retaliation is realm has not at least up to the point where the discipline is issued after she files doesn't it matter she's not argued that the temporal proximity that is used and the case law cited by the government pertains to when an employee claims retaliation and her only basis is temporal proximity has not argued that she she wouldn't be able to sew this temp having it longer so it comes out i think this will allow you to continue on on what you're trying to make but just to focus you with the district is the fact that this is particularly compared to what the discipline is for o'toole says i never have even recommended anyone for demotion before understanding the down the downgrade that to  we can look at the entire history of how this kind of rela has been treated and that i understand it's more amorphous but i think that the most telling thing is the disparate treatment  and yes thank you very much