[00:00:00] Speaker 04:
Case number 24-17, Court in Grief.

[00:00:03] Speaker 04:
Gerard DeVos, the balance, versus District of Columbia Housing Authority, head out.

[00:00:09] Speaker 04:
Mr. Chan, amicus curiae, pregnant balance.

[00:00:11] Speaker 04:
Mr. Douglas, pregnant balance.

[00:00:14] Speaker 00:
Good morning.

[00:00:15] Speaker 00:
Good morning, Your Honors.

[00:00:16] Speaker 00:
May it please the Court.

[00:00:17] Speaker 00:
My name is Huggum Chan, amicus curiae counsel, and I'm presenting arguments in favor of pro se appellant Gerard DeVos.

[00:00:24] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:00:28] Speaker 00:
Our collective life experiences should reasonably inform us that when someone accuses another of misusing a credit card, that the accuser also identifies the allegedly unauthorized transactions to the accused so as to allow the latter to respond accordingly.

[00:00:45] Speaker 03:
But we're here more than just about unauthorized transactions.

[00:00:48] Speaker 03:
Isn't it also about taking a trip to Maryland?

[00:00:52] Speaker 00:
Your honor, that is part of the unauthorized transact.

[00:00:55] Speaker 00:
That's part of the unauthorized transactions.

[00:00:58] Speaker 00:
That's part of the accusations that had occurred in Maryland.

[00:01:00] Speaker 00:
But the actual trip or the alleged trip to Maryland, that doesn't form the basis of why the agency was about to terminate Mr. Navaj.

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What we're focused on is the list of 26 disputed transactions that were identified in the draft notices of disciplinary action.

[00:01:23] Speaker 00:
Mr. Devach did not receive procedural due process because DCHA, or DC Housing Authority, did not identify the disputed transactions underlying its charge of credit card misuse against them.

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It did not provide him with the underlying evidence of support of that charge, and it did not afford him a meaningful opportunity to respond to the charge.

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I'll address each of these failures in turn, each of which must result in the reversal or vacator of some or each other.

[00:01:49] Speaker 03:
But you still have notice of generally unauthorized transactions related to a gas card.

[00:01:56] Speaker 03:
And so why isn't that broad enough and narrow enough for you to know what is that issue for a termination?

[00:02:05] Speaker 00:
Yes, your honor, because this court's precedent has said that in order to have a meaningful opportunity to respond to a charge that leads to a deprivation of a right, the the plaintiff has to have notice of what those charges are or the opportunity to provide receipts.

[00:02:24] Speaker 00:
Your Honor, that is the defendant's primary argument.

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However, it's legally irrelevant that the agency asks for those receipts.

[00:02:32] Speaker 03:
The burden of ensuring... Asking for the receipts, then you can put it together with the transactions.

[00:02:37] Speaker 00:
Your Honor, not if Mr. DeVos doesn't know what receipts he has to turn in.

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Because according to him...

[00:02:44] Speaker 00:
Well, it's his position, at least from the record from what I could see, that he did turn all of them in.

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And so he needs to know what those additional disputed transactions are so that he can defend for himself.

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So for example, it may be that the other

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charges were made by somebody else.

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And there's actually record evidence to support a reasonable inference that someone else may have actually had the credit card and was making the unauthorized transactions.

[00:03:11] Speaker 02:
Is it in the record what the terms are in terms of the responsibility of the employee who is given an agency credit card?

[00:03:23] Speaker 02:
I mean, it seems to me one, and I haven't seen that argued in this case,

[00:03:28] Speaker 02:
If by issuing an agency card to the employee, the agency and employee agree that the employee is effectively the guarantor of the use of that card when it's in the employee's possession, that seems to me that would bear on this question.

[00:03:51] Speaker 02:
But we don't know anything about that in this record.

[00:03:54] Speaker 00:
Sure, Your Honor, I think that's correct.

[00:03:56] Speaker 00:
We don't know anything about that, but there's a reasonable inference to be drawn from the record that he may not have had possession of the credit card for these 26 allegedly unauthorized transactions.

[00:04:09] Speaker 02:
Are you suggesting some other employee or someone else in the agency or rather someone in his household or

[00:04:15] Speaker 00:
I think all of those could be reasonable inferences.

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But if the court would like, I can walk through the joint appendix for specific pages.

[00:04:23] Speaker 03:
But he was also supposed to turn the credit card in every day, right?

[00:04:26] Speaker 00:
Correct.

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And the record reflects that he did.

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But that doesn't mean that somebody else didn't take out the credit card.

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And it could have been all without any malicious intent.

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It could have been a mistake that somebody else checked out the credit card.

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But on the facts of this record, there's a reasonable inference to be drawn that Mr. DeVos didn't necessarily make all of the alleged disputed transactions.

[00:04:52] Speaker 03:
Did he really try to engage with the company with respect to asking for the additional information when he had lots of opportunities between when he first learned about all this in November up until the actual date of alleged termination and or resignation?

[00:05:08] Speaker 00:
I don't, the record doesn't seem to reflect that he did.

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But again, your honor, the burden of ensuring compliance with due process is on the agency.

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It was incumbent on the agency to inform Mr. Devage which transactions are deemed as being unauthorized or unsubstantiated with receipts so that Mr. Devage could meaningfully defend himself and potentially submit any additional receipts that he may not have turned in previously.

[00:05:32] Speaker 03:
And then just going back quickly to the charge in Maryland, you earlier were trying to make that some kind of separate issue or something that he was not informed of, because if he was, that's a yes or no answer.

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Did you go to Maryland or not?

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And is Maryland in your district?

[00:05:49] Speaker 00:
Well, he wasn't, Your Honor, he wasn't the charge against him is having disputed unauthorized transactions.

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So whether he made those unauthorized transactions in Maryland or he made them in D.C., that's not really the point of why they were trying to terminate him.

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It was the fact that it was a disputed transaction.

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So in that particular example, it could have been in D.C.

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that transaction could have taken place in DC, and the agency still would have charged them with credit card misuse.

[00:06:19] Speaker 03:
So you would agree that if Maryland is not his district, he should not be there?

[00:06:24] Speaker 00:
That's correct.

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At least based on this record, that's what I can tell.

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But again, that shouldn't take away from the point that he didn't have notice as to which transactions were allegedly in Maryland or just more generally unauthorized.

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Again, defendants have cited no case law that holds that a plaintiff like Mr. Devage has a responsibility to proactively figure out the factual basis of the actions taken against them or affirmatively request that the government provide him with the evidence in support of those transactions.

[00:06:57] Speaker 02:
Let me ask you, Mr. Chan, did Mr. Devage's

[00:07:01] Speaker 02:
I know it's disputed or there's a question in the briefing as to whether it was voluntary, but did the resignation render him ineligible for normal grievance process, the fact that he left and was no longer an employee?

[00:07:17] Speaker 00:
I think at least based on this record, and it's my understanding from reading it, that it looks like he didn't get those post-termination processes because he wasn't treated as being effectively terminated.

[00:07:29] Speaker 02:
And how can we conclude that it wasn't a voluntary termination?

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And I know there's an argument that there was a misrepresentation.

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And what I understand that to be was that the agency expressed an imminence about delivering the notice of termination that was inaccurate.

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Is that right?

[00:07:52] Speaker 00:
Yeah.

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So this court, in order for this court to remand the reverse or vacate summary judgment and remand for further proceedings, it doesn't have to conclude that there was in fact a involuntary resignation.

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There just has to be a genuine dispute of material fact over it.

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And certainly the record allows this court to draw that, which is why it would be inappropriate to affirm on that alternative basis.

[00:08:15] Speaker 02:
So tell me about that genuine dispute of material effect.

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Am I right that the asserted misrepresentation was that the agency said on the 22nd, we're going to deliver this termination package to you on the 22nd, and it'll be done.

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And that therefore, Mr. DeBage was feeling like, I need to decide ASAP.

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And I take it that his

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how he claims that affected him because he wasn't able to get more information.

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Is that the nature of the misrepresentation?

[00:08:49] Speaker 00:
Yes, Your Honor.

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I believe that those are grounds sufficient to support misrepresentation as well as duress under the case law.

[00:08:57] Speaker 02:
And in terms of misrepresentation, though, the misrepresentation has to be material.

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It has to be something that, had it not been communicated,

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things might have come out differently for the plaintiff.

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And I'm not sure I follow the train of reasoning of what would have come out differently had they said, hey, we're going to serve this on you next week, or we're not quite ready, but this is our plan.

[00:09:29] Speaker 00:
So I think, Your Honor, the inquiry focuses less on the outcome or the result and more about the process.

[00:09:35] Speaker 00:
The case law suggests that the touchstone of the inquiry is about being able to make a voluntary and informed choice.

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And so even if he would have been given more time and decided to resign, that's not the right lens to look at this inquiry.

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It's about whether or not he had sufficient amount of time to make an informed decision.

[00:09:58] Speaker 02:
If it had come later, there has to be materiality.

[00:10:05] Speaker 02:
A misrepresentation can't just be any random misrepresentation.

[00:10:09] Speaker 02:
It has to be a misrepresentation that harmed him.

[00:10:12] Speaker 02:
And you're saying, well, it harmed him because he didn't have time to get more information.

[00:10:17] Speaker 02:
And then the next question is, why is that material?

[00:10:20] Speaker 02:
What could he or would he have found out that might have changed his calculus?

[00:10:27] Speaker 00:
Your honor, I see that my time is up.

[00:10:29] Speaker 00:
My answer.

[00:10:29] Speaker 00:
You can continue as long as we have questions.

[00:10:33] Speaker 00:
OK.

[00:10:34] Speaker 00:
What it prevented him from doing was making an informed choice.

[00:10:37] Speaker 00:
So he, for example, couldn't get information about what the financial consequences or hardship would have been if he had decided to stay on the job and decided to challenge, subsequently challenge, his termination.

[00:10:51] Speaker 02:
So can you say more what you mean, what financial consequences?

[00:10:54] Speaker 00:
So for example, as a general matter, if you're terminated versus as opposed to being resigned, it might affect, for example, subsequent unemployment benefits.

[00:11:04] Speaker 00:
Maybe it affects how your retirement benefits are discharged.

[00:11:09] Speaker 00:
Maybe it affects your health insurance benefits.

[00:11:12] Speaker 00:
All of those types of benefits that come as a perk of a job, he wasn't able to figure out what the consequences were.

[00:11:20] Speaker 02:
But there's no better news that I can think of that he would have gotten than what he was already fearing, which was those would have been in jeopardy.

[00:11:27] Speaker 00:
Those would have been, well, he was entitled to learn about the fact that they were informed.

[00:11:32] Speaker 02:
Except if what he learned would have absolutely been what he was already assuming, then the punitive misrepresentation is just not material.

[00:11:40] Speaker 00:
So I don't know if that's, I would respectfully disagree with that, your honor.

[00:11:47] Speaker 00:
But the second point would be that the folks that he was getting information from with respect to any sort of job benefits were folks that didn't even have full notice of what the charges against him were.

[00:11:59] Speaker 00:
And so they couldn't have reliably given him appropriate advice such that he could have made an informed decision as to whether to resign or stay on the job and challenge determination.

[00:12:10] Speaker 04:
All right, I have a question for you.

[00:12:12] Speaker 04:
And it may take some time.

[00:12:14] Speaker 04:
I know you were not the lawyer in district court.

[00:12:19] Speaker 04:
But how closely did you review the docket in district court?

[00:12:23] Speaker 00:
I would say I did review it.

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And I'm happy to try to answer any questions.

[00:12:29] Speaker 04:
I'm looking at exhibit six, which is a notice of disciplinary action.

[00:12:35] Speaker 04:
The very month this was going on,

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Mr. DeVos was stopped from running a red light in Maryland.

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He had his son in the car with him.

[00:12:48] Speaker 04:
And it's a document in the district court record, several pages notifying him of his rights and so forth, the very month that this was going on.

[00:13:04] Speaker 04:
Now I'm going to ask the other side why on earth they didn't tell us about this because it shows that he knew the whole notice of disciplinary action procedure.

[00:13:18] Speaker 04:
He was

[00:13:20] Speaker 04:
being subject to it at the very same time as this gas purchasing going on with misuse of the vehicle with his son in it driving in Maryland when he was supposed to be inspecting houses in southeast Washington.

[00:13:37] Speaker 04:
And you don't know anything about that.

[00:13:39] Speaker 00:
I don't know the actual, the underlying basis.

[00:13:42] Speaker 00:
I did review that in the record and I don't perceive that to be necessarily relevant to the issue that we have here.

[00:13:48] Speaker 00:
Again, he needs, he needed to have notice provided by the agency.

[00:13:53] Speaker 03:
Focus this on only gas transactions when one of the allegations is that he was unauthorized to be in Maryland.

[00:14:01] Speaker 03:
You keep trying to separate that or turn it into a transaction.

[00:14:05] Speaker 00:
Yes, so if, Your Honor, JA 133 through 134 and JA 140 through 141, those are where the two draft notices of disciplinary action are that are relevant to this case.

[00:14:17] Speaker 00:
And I don't believe, if you read those two particular notices, there's anything mentioned about driving in Maryland as being the cause for why they want to terminate him.

[00:14:27] Speaker 00:
It is strictly focused on making unauthorized transactions.

[00:14:31] Speaker 00:
So again, even if the Maryland transaction had occurred in DC,

[00:14:35] Speaker 00:
that wouldn't have led to the agency withdrawing their basis for wanting to terminate him.

[00:14:45] Speaker 04:
So just so I'm clear, you think that exhibit six, which sets out exactly what I have said, is not relevant to this case

[00:14:58] Speaker 00:
No, because we what we are focused on is as far as notice as far as notice, because the notice is great.

[00:15:05] Speaker 04:
Thank you.

[00:15:05] Speaker 04:
I don't have any other questions.

[00:15:06] Speaker 04:
Do you have any?

[00:15:08] Speaker 04:
Okay, we'll give you a couple minutes.

[00:15:10] Speaker 04:
So, Mr. Douglas.

[00:15:25] Speaker 01:
Good morning, may please the court.

[00:15:26] Speaker 04:
May I ask you why you did not inform the court of this additional?

[00:15:31] Speaker 01:
I believe that is we have informed the court of that.

[00:15:35] Speaker 01:
I believe that you're on if you look at our underlying well, it's not it's in our underlying motion for summary judgment.

[00:15:43] Speaker 01:
And what that goes to is not the unauthorized transactions.

[00:15:47] Speaker 04:
I mean, this court in your brief,

[00:15:52] Speaker 01:
Your Honor, I believe we did.

[00:15:54] Speaker 01:
We made reference to it because the point we were making about that transaction in Maryland, it goes to whether or not Mr. DeVos understood the grievance process.

[00:16:08] Speaker 01:
And I believe we pointed out that he did understand the grievance process.

[00:16:14] Speaker 01:
I believe we pointed out that Mr. DeVos had grieved in the past.

[00:16:20] Speaker 01:
He grieved this particular matter.

[00:16:22] Speaker 01:
He grieved another matter in which he was up for termination.

[00:16:27] Speaker 01:
It's my best recollection that he prevailed.

[00:16:30] Speaker 04:
He got three days of...

[00:16:33] Speaker 04:
suspension or something.

[00:16:34] Speaker 01:
He got three days of suspension for that matter, that is driving in Maryland.

[00:16:39] Speaker 04:
With his son, which was against company regulation.

[00:16:44] Speaker 01:
He was using the car for personal purposes, and that was against the regulations of DCHA.

[00:16:49] Speaker 01:
With respect to what took place in November of 2017.

[00:16:57] Speaker 04:
Well, this is November of 2017.

[00:17:01] Speaker 01:
Yes, Your Honor, but it's a different incident, and it's not the incident that went to the notice of proposed discipline here.

[00:17:09] Speaker 04:
It happened on September 21st of 2017.

[00:17:13] Speaker 04:
Yes, Your Honor.

[00:17:15] Speaker 04:
And the notice he's getting is November of 2017.

[00:17:19] Speaker 04:
Go on with the rest of your argument.

[00:17:22] Speaker 01:
Your Honor, before the court is,

[00:17:26] Speaker 01:
the intention that Mr. Duvage voluntarily or involuntarily resigned.

[00:17:33] Speaker 01:
And the argument focuses upon whether or not he was given notice of what was being investigated.

[00:17:46] Speaker 01:
What happened in fact, Your Honor, is this.

[00:17:50] Speaker 01:
That in an audit of the October

[00:17:54] Speaker 01:
2017 American Express bill and credit card for which Mr. Devage had been assigned, there appeared to be several transactions.

[00:18:07] Speaker 01:
First, DCHA had a procedure that the use of the credit card had to be logged in and a receipt provided so that in an audit, they could compare the receipt to the charges.

[00:18:25] Speaker 01:
For the charges that were in October of 2017, there were approximately $332 in charges for which there was no receipt.

[00:18:35] Speaker 02:
I have a question about whether, I don't see anything in the record saying that DCHA, well, DCHA did have the credit card receipt or the credit card statement.

[00:18:55] Speaker 01:
The American Express statement, yes, it did.

[00:18:57] Speaker 02:
So DCHA had that statement, right?

[00:19:00] Speaker 02:
And DCHA does not claim that it ever gave a copy of that statement.

[00:19:05] Speaker 01:
It did not.

[00:19:07] Speaker 02:
Or showed a copy of that statement to Mr. DeVos.

[00:19:10] Speaker 01:
No.

[00:19:11] Speaker 01:
What DCHA states, and I think the record sustains, is that Mr. DeVos was asked to attend a meeting between Mr. Dyer, Ms.

[00:19:22] Speaker 01:
Russell, and himself.

[00:19:24] Speaker 01:
And he was asked questions about the October 2017 charges.

[00:19:31] Speaker 01:
And specifically, he's asked questions about, one, why are there charges in Maryland?

[00:19:40] Speaker 01:
The district in which you are basically providing services is in the District of Columbia.

[00:19:44] Speaker 01:
There are no units to inspect in Maryland.

[00:19:46] Speaker 01:
So what are you doing in Maryland getting gas?

[00:19:50] Speaker 01:
Two, there are charges on this card which there are no receipts.

[00:19:57] Speaker 01:
You are obligated to provide receipts for each and every transaction.

[00:20:01] Speaker 01:
Three?

[00:20:02] Speaker 02:
Yeah.

[00:20:02] Speaker 02:
OK.

[00:20:03] Speaker 02:
Keep going.

[00:20:04] Speaker 01:
Three.

[00:20:05] Speaker 01:
The amount on the card seems to be very, very high.

[00:20:07] Speaker 01:
It's $532, which was higher than the average use in that month or for other persons who were using, who were doing the same job, that is, inspecting properties in the District of Columbia.

[00:20:22] Speaker 01:
He's asked specifically, did you do charges in Maryland?

[00:20:27] Speaker 01:
He says, no, I did not.

[00:20:29] Speaker 01:
I didn't do it.

[00:20:32] Speaker 01:
He says, he's asked specifically where the other receipts are.

[00:20:36] Speaker 01:
He says, I've turned my receipts in.

[00:20:39] Speaker 02:
I guess what I'm thinking is given that the case law says that an employee is entitled to an explanation of the evidence that puts him on notice and enables him

[00:20:57] Speaker 02:
to respond.

[00:20:58] Speaker 02:
If my spouse came to me and said, wow, there's all these charges on the visa bill.

[00:21:05] Speaker 02:
We talked about all the big spending you've been doing.

[00:21:09] Speaker 02:
And I would say, I think so.

[00:21:13] Speaker 02:
What do you mean?

[00:21:14] Speaker 02:
Well, it's $2,000 over a series of 10 transactions.

[00:21:19] Speaker 02:
I would be like,

[00:21:20] Speaker 02:
If you showed that to me, and I could see one was for auto repair, another was for the bookstore where I was buying a gift for our cousins, remember, honey?

[00:21:32] Speaker 02:
I don't think any of us would be able, in that sort of black box, confronted with that black box statement, there are more charges here that we would be able to jog our memory and say, well, right.

[00:21:46] Speaker 02:
Oh, yeah, I did swing up.

[00:21:49] Speaker 02:
you know, Georgia Avenue and I wasn't Silver Spring and not in DC where I filled the car.

[00:21:55] Speaker 02:
I mean, it just as a matter of due process, it seems like the key thing

[00:22:03] Speaker 02:
would be to provide, and I'm not saying there's not a reason to go into an inquiry and a reason to confront the employee about this, but in terms of what gives the person process, it's hard for me to think that anything short of the statement that in fact gave the agency

[00:22:30] Speaker 02:
raise the questions for the agency would be what the employee would need to be able to.

[00:22:34] Speaker 01:
Well, if I may, let me take the example that you've just given.

[00:22:38] Speaker 01:
And not to personalize, but to use it.

[00:22:46] Speaker 01:
I come home and I say, I've just gotten the American Express bill for the last month.

[00:22:52] Speaker 01:
OK.

[00:22:53] Speaker 01:
Now, there's no reason for you to be in Maryland at all.

[00:22:58] Speaker 01:
but yet there is a charge here in Maryland.

[00:23:01] Speaker 01:
Showing you the receipt that there's a charge, showing you the statement that there's a charge in Maryland does you no good.

[00:23:07] Speaker 01:
There's a charge in Maryland.

[00:23:10] Speaker 02:
Again, you know, driving up Georgia Avenue toward Silver Spring, like am I in DC?

[00:23:18] Speaker 02:
I mean, I just feel like if you're asking someone to confront

[00:23:25] Speaker 02:
what is giving you concern.

[00:23:28] Speaker 02:
And what about the other charges?

[00:23:30] Speaker 02:
I mean, there's one about Maryland.

[00:23:32] Speaker 02:
What about the other charges?

[00:23:33] Speaker 01:
There are other charges and there's no receipt at all.

[00:23:36] Speaker 01:
And you're supposed to provide the receipts.

[00:23:38] Speaker 01:
Where are the receipts?

[00:23:43] Speaker 02:
if they're all where employee B lives and that employee, I mean, it just seems like you have in hand the most relevant information that would jog if somebody were not culpable, that would give them a basis for saying either, whoa, that is totally not me, or, oh my gosh, let me tell you what I think these are about.

[00:24:10] Speaker 01:
Well, Your Honor, in terms of

[00:24:13] Speaker 01:
what's going on here and remember this is a pre-termination issue and the reasons behind that is you give the person an opportunity to respond.

[00:24:24] Speaker 01:
He's specifically asked to respond to the question of having the charges in October 2017 and he does respond.

[00:24:33] Speaker 01:
He says, A, I didn't do it.

[00:24:37] Speaker 01:
I think I turned in all my receipts, and he's then asked to provide the additional receipts.

[00:24:43] Speaker 01:
So giving him the statement and saying, look at this particular day, you have a receipt for October the 1st.

[00:24:50] Speaker 01:
You are obligated in the DCHA procedures to provide a receipt each and every time you use the card.

[00:24:57] Speaker 02:
Right, but his position is

[00:24:59] Speaker 02:
I gave you the receipts and you're saying, well, that means he's not complying with respect to their charges.

[00:25:07] Speaker 02:
And I guess the question is, isn't he entitled to try to explain the charges that you're saying he's responsible for which he doesn't have receipts?

[00:25:18] Speaker 02:
Unless you're saying...

[00:25:19] Speaker 02:
The fact that he is the issuee of the card, then just race Ipsa Locutor.

[00:25:26] Speaker 02:
Everything that flows from that, he's the guarantor of those expenses.

[00:25:31] Speaker 02:
I don't hear you making that argument.

[00:25:35] Speaker 01:
Well, if I have to, I will.

[00:25:37] Speaker 01:
But you haven't made that argument.

[00:25:39] Speaker 02:
I've not made that argument.

[00:25:40] Speaker 02:
You see no policy of the agency on that ground.

[00:25:43] Speaker 02:
But it sounds like that's your assumption.

[00:25:45] Speaker 02:
No.

[00:25:48] Speaker 02:
And maybe he was insufficiently vigilant about somebody else having access to the card, or maybe when he turned it in, it was given to somebody else.

[00:26:01] Speaker 02:
But he can't even address that.

[00:26:04] Speaker 01:
He does not say that, Your Honor.

[00:26:06] Speaker 01:
It's your burden to give him process.

[00:26:09] Speaker 01:
I'm giving him process.

[00:26:10] Speaker 01:
I'm asking him about...

[00:26:12] Speaker 01:
the charge.

[00:26:13] Speaker 01:
I'm asking him to write all receipts to me.

[00:26:18] Speaker 01:
We say to him at the end of the meeting, we say before the meeting, by way of email, bring the card to us and bring in all receipts.

[00:26:27] Speaker 01:
At the end of the meeting, we say, look,

[00:26:31] Speaker 01:
We're going to look at the entire transactions that you've had when you've had this card in your possession.

[00:26:38] Speaker 01:
And what's said to Mr. DeBodge at that point in time is, you know, you admit you've had the card, you've not turned it in, you violated our procedure.

[00:26:47] Speaker 02:
You admit he hasn't turned it in?

[00:26:50] Speaker 01:
He is.

[00:26:51] Speaker 02:
He denied that.

[00:26:51] Speaker 02:
I thought he said he did turn it in.

[00:26:53] Speaker 01:
no he says he did turn it in your honor and that is made in his motion for his either his opposition or his motion for summary judgment he says um i did turn the card in i and let me be

[00:27:15] Speaker 01:
He may have also said that to Mr. Thaxton that he had had the car in his possession in all but six or seven times.

[00:27:24] Speaker 01:
He did not turn it in.

[00:27:26] Speaker 02:
Do you have sides for that?

[00:27:29] Speaker 02:
I'm not sure that I know where you're referring to.

[00:27:32] Speaker 01:
It would be the, I think would be the facts that affidavit.

[00:27:38] Speaker 01:
I do not.

[00:27:39] Speaker 02:
Thaxton affidavit?

[00:27:40] Speaker 02:
That's not his affidavit.

[00:27:43] Speaker 01:
No, it's not his affidavit.

[00:27:47] Speaker 01:
Well, excuse me, Your Honor.

[00:27:48] Speaker 01:
I think that he does supply an affidavit also.

[00:27:51] Speaker 01:
And I'm just not remembering.

[00:27:53] Speaker 01:
I'm trying to be very accurate in terms of where it's coming from.

[00:27:57] Speaker 01:
I know that in the opposition to the motion for summary judgment, one of its contentions is I think he says, I told Mr. Thackson that

[00:28:13] Speaker 01:
Um I kept the card.

[00:28:19] Speaker 01:
He says something in terms of keeping the card.

[00:28:21] Speaker 01:
It's it's and uh for six or seven occasions.

[00:28:26] Speaker 03:
I'm I'm getting you would say he didn't turn it in daily.

[00:28:28] Speaker 01:
Oh, he didn't turn it in.

[00:28:30] Speaker 01:
You know, our our contention your honor is that um

[00:28:36] Speaker 01:
And again, this is a pre-termination proceeding.

[00:28:40] Speaker 01:
It's not a proceeding.

[00:28:43] Speaker 01:
It's basically DCHA saying to a person, look, we think there's been misuse of the credit card.

[00:28:51] Speaker 01:
You don't deny that you've had a credit card in your possession since the time it was issued.

[00:28:56] Speaker 01:
At some point in time, there is a denial.

[00:29:02] Speaker 01:
And the issue that I'm having here is that he is told what's an issue.

[00:29:09] Speaker 01:
He provides a response.

[00:29:11] Speaker 01:
And the issue is he's not terminated then.

[00:29:17] Speaker 01:
DCHI basically does not do that.

[00:29:19] Speaker 03:
OK, so let's be clear about exactly what he is on notice about and then how he responds to what you put him on notice about so that we can see if those two match up.

[00:29:32] Speaker 03:
And then the next question would be what do you perceive Laudermill requiring because it says that oral notice and an explanation is all that's required.

[00:29:42] Speaker 01:
That's correct.

[00:29:46] Speaker 01:
We contend first of all that there are there are two key meetings.

[00:29:50] Speaker 01:
The first meeting being that among Mr.

[00:29:56] Speaker 01:
Mr. Dyer and Ms.

[00:29:58] Speaker 01:
Russell.

[00:29:59] Speaker 01:
At that meeting, he is putting the charges in Maryland.

[00:30:07] Speaker 01:
The charges being that, one, there's a charge in Maryland, a use in Maryland, for which there's no receipt.

[00:30:16] Speaker 01:
And the question is, why is there even a charge in Maryland, since it's an issue, since the card is supposed to be used only in the District of Columbia?

[00:30:26] Speaker 01:
Two, he's put on notice that there are charges which there are no receipts at all.

[00:30:34] Speaker 01:
Three, he's put on notice that there is an unusual amount of charges.

[00:30:39] Speaker 01:
That is, there's gotta be some justification for $533 of charges in the month of October when all you're supposed to be doing is buying gas.

[00:30:52] Speaker 01:
OK, so that's what he's put on notice, I believe, on November the 7th.

[00:30:57] Speaker 01:
He has put on notice that DCHA is going to be, in that meeting, he's put on notice that DCHA is going to be looking at all credit card chargers from July through the end of October, July 2017 through the end of October.

[00:31:17] Speaker 01:
He receives a card in June.

[00:31:27] Speaker 01:
It's in that meeting in which there's the issue of whether or not he's asked about, he's said, he's told that he has not turned the card in every day, that it's been in his possession since the time the card was issued in June until he was asked to turn it in.

[00:31:53] Speaker 02:
there is some evidence that supports the agency's view doesn't mean there's no factual dispute on that point.

[00:32:04] Speaker 02:
So that's, I mean, we're at summary judgment.

[00:32:05] Speaker 02:
I'm not saying that no reasonable fact-finder

[00:32:09] Speaker 02:
could agree with the agency.

[00:32:10] Speaker 02:
But when we're in a summary judgment posture, the question is, would any reasonable fact finder have to credit the agency's view over Mr. DeVos's?

[00:32:21] Speaker 02:
And Mr. DeVos has said he turned in the card.

[00:32:24] Speaker 02:
You're saying he didn't.

[00:32:26] Speaker 02:
Why is that not a disputed factual issue for a fact finder?

[00:32:31] Speaker 01:
The question is,

[00:32:32] Speaker 01:
The question is whether Mr. DeVos's resignation is voluntary or involuntary.

[00:32:37] Speaker 01:
That is also a question.

[00:32:38] Speaker 01:
And the issue is whether Mr. DeVos was afforded all the procedural due process that the Constitution requires at this stage.

[00:32:50] Speaker 01:
I mean, because what Mr. DeVos is doing, he does not contest the fact that, yes, I have resigned.

[00:32:56] Speaker 01:
What he asserts is that you just didn't give me constitutional process.

[00:33:01] Speaker 02:
I think what he's asserting is that this representation was that the agency was ready to serve him with the notice of termination on the Friday, the 22nd of December.

[00:33:16] Speaker 02:
And that it turns out, we now know, that it actually wasn't ready to do that then.

[00:33:22] Speaker 02:
And so he's making an aberrant

[00:33:26] Speaker 02:
that the misrepresentative that rushed him, he couldn't get in touch with people, it was an employee holiday party, and that there was some information that he lacked that if it hadn't been falsely claimed that it was

[00:33:43] Speaker 02:
imminent that he might have obtained.

[00:33:46] Speaker 02:
Is that the way you understand his claim?

[00:33:48] Speaker 02:
I'm not asking you to agree with it, but I'm asking whether you agree with it.

[00:33:51] Speaker 01:
No, I don't understand his claim to be Vacheron.

[00:33:54] Speaker 02:
I understand his claim to be... What do you understand to be what he is identifying as a punitively material misrepresentation

[00:34:08] Speaker 01:
Well, I understand that he is now asserting the fact that the agency had not reached a final decision.

[00:34:24] Speaker 02:
But it said it had.

[00:34:26] Speaker 01:
It did not say that, Shalona.

[00:34:28] Speaker 02:
OK, I'm trying to understand what you're characterizing as your understanding of his claim that there was a material misrepresentation.

[00:34:37] Speaker 01:
At best, as I understand it right now, you're honest, is this.

[00:34:41] Speaker 01:
Mr. Duvage is taking a conversation between Mr. Thaxton and Ms.

[00:34:49] Speaker 01:
Gillis and is saying in that conversation,

[00:34:54] Speaker 01:
When Mr. Thaxton, in fact, says two things, first of all, or really several, one I recommended for, I recommended termination here.

[00:35:05] Speaker 01:
And he says to her, Thaxton, I'm waiting for one signature.

[00:35:17] Speaker 01:
I have all but one signature.

[00:35:22] Speaker 01:
And he says, that's what he says to her.

[00:35:28] Speaker 01:
And this is with Ms.

[00:35:31] Speaker 01:
Gillis, who, as I understand it, understands what the process is, that there has to be at least, that two departments have to sign off on it.

[00:35:42] Speaker 01:
And all he's doing right now is just waiting for one department to do that.

[00:35:48] Speaker 01:
And he explains to Ms.

[00:35:49] Speaker 01:
Gillis,

[00:35:50] Speaker 01:
that he believes the agency is firm in its conclusion to terminate him because of the prior grievance and the prior discipline, or really the prior discipline, and the fact that what's at the issue here is whether or not there is theft.

[00:36:09] Speaker 01:
And under the table of penalties, there is no other discipline that can be imposed.

[00:36:20] Speaker 02:
So why isn't what you just described, they didn't yet have the second signature.

[00:36:25] Speaker 01:
Yes.

[00:36:26] Speaker 02:
So they weren't actually ready to serve the nose determination the following day.

[00:36:32] Speaker 02:
They had to get that signature.

[00:36:35] Speaker 02:
That's correct.

[00:36:36] Speaker 02:
OK.

[00:36:37] Speaker 02:
So they didn't have it all signed, sealed, and delivered.

[00:36:40] Speaker 02:
That's all I understand his claim to be.

[00:36:43] Speaker 02:
I'm not saying it necessarily gets him where he wants to go.

[00:36:50] Speaker 02:
instead of fighting the record on that.

[00:36:54] Speaker 02:
I thought, which includes a dispute of material fact, I thought you might respond why that isn't material.

[00:37:02] Speaker 01:
Well, it's not material, Your Honor.

[00:37:06] Speaker 01:
It's clearly not material in terms of what the resignation here is, because the reasoning behind Mr. Gillis's determination, I'm sorry, Mr. DeVos's decisions to

[00:37:24] Speaker 01:
resign, he clearly states that I'm looking at it, and I'm concerned that they could criminally prosecute me.

[00:37:36] Speaker 01:
It has nothing to do with the signature.

[00:37:39] Speaker 01:
And as to when the signature is obtained, Mr. Thaxton, I mean, Mr. Duvall is operating under the assumption, again, given to him by Ms.

[00:37:50] Speaker 01:
Gillis, that if he resigns,

[00:37:54] Speaker 01:
he can avoid any sort of prosecution at all.

[00:37:57] Speaker 01:
The idea of being if I resign, the idea of being if I resign, no discipline proceeding can be initiated against me.

[00:38:11] Speaker 01:
And Mr. DeVos says that.

[00:38:14] Speaker 03:
But does he have any post-resignation slash termination rights?

[00:38:19] Speaker 01:
post-resignation, no, because he's resigned.

[00:38:22] Speaker 02:
Okay.

[00:38:22] Speaker 02:
When you say he says that, where does he say that?

[00:38:24] Speaker 01:
I'm sorry, just wrapping up the... We quote his deposition transcript in our brief, in which he basically, in which he says that, in which a question is asked of him about why you're resigning.

[00:38:44] Speaker 01:
And he says, you know, it's the criminal charges.

[00:38:48] Speaker 01:
the possibility of being criminally prosecuted.

[00:38:50] Speaker 02:
OK.

[00:38:54] Speaker 02:
Do you have any more?

[00:38:55] Speaker 02:
You don't know the page-safe and JA for that, do you?

[00:38:58] Speaker 02:
Excuse me.

[00:38:59] Speaker 01:
We have a page-safe plan.

[00:39:02] Speaker 01:
Courts and Dungeons, I think I'll have them in a second.

[00:39:21] Speaker 01:
That's, you know, there's, there's, in the brief, there's references to a joint appendix, page 250.

[00:39:30] Speaker 01:
But the, the deposition testimony that's quoted is, I'm looking for that right now.

[00:39:42] Speaker 01:
No, it's not that, it's my question.

[00:39:44] Speaker 01:
And I don't have that right before right now.

[00:39:47] Speaker 01:
So I'm going to give the, give a miscite.

[00:39:51] Speaker 01:
More importantly, to answer a question that had been posed, Mr. Duvage is told that you should not resign.

[00:40:09] Speaker 01:
You should wait to see what the charges are that are being presented against you.

[00:40:16] Speaker 01:
And once those charges are being presented against you, the union will do all that it can to assist you.

[00:40:26] Speaker 04:
All right.

[00:40:29] Speaker 04:
Thank you.

[00:40:30] Speaker 01:
Thank you.

[00:40:31] Speaker 04:
Does Mr. Chan have any time left?

[00:40:33] Speaker 04:
All right.

[00:40:34] Speaker 04:
Why don't you take one minute?

[00:40:41] Speaker 00:
Thank you, Your Honors.

[00:40:43] Speaker 00:
With the one minute that I have, I'd like to try to address just two issues.

[00:40:46] Speaker 00:
First, I want to go back to this Maryland charge because it seems to be, I think it's an exemplary of the issue that we have here, which is just because he's told that there was an allegedly unauthorized transaction in Maryland, that's not enough.

[00:41:04] Speaker 00:
right?

[00:41:04] Speaker 00:
Because we didn't hear what I didn't hear my friend on the other side of the aisle say was that there is no reasonable inference to be drawn from this record that someone else had that credit card and could have made charges to it.

[00:41:17] Speaker 00:
And so telling him that, hey, there's an unauthorized charge of Maryland doesn't allow him to, for example, track down

[00:41:24] Speaker 00:
whether or not he was working on the day that the charge was made in Maryland, or whether even his schedule took him to homes that were anywhere near the Maryland or DC border.

[00:41:34] Speaker 00:
And so that is why it's important to give him at least the dates of when these transactions occurred.

[00:41:40] Speaker 00:
And that's the same issue with the rest of the transactions.

[00:41:43] Speaker 00:
He can't meaningfully defend himself if he doesn't know what the other transactions are.

[00:41:49] Speaker 00:
In fact, he was deprived of even the meaningful opportunity to make the defense that somebody else made the unauthorized transactions.

[00:41:57] Speaker 00:
And two, with respect to the voluntary

[00:42:00] Speaker 00:
or involuntary resignation issue.

[00:42:02] Speaker 00:
Again, this court should remand to the district court in the first instance because the district court didn't consider it.

[00:42:07] Speaker 00:
But even if it wants to address it on the merits, Judge Blard is right that the at least with respect to misrepresentation, it was that they told them they were ready to terminate him on December 22nd.

[00:42:20] Speaker 00:
They weren't.

[00:42:21] Speaker 00:
So that's involuntary resignation with respect to misrepresentation.

[00:42:25] Speaker 00:
But there's also a dispute of material fact concerning whether his involuntary resignation was a result of duress, meaning he was under a compressed time frame to decide whether to resign or to stay on the job and be terminated, all while without adequate notice of the dispute of transactions, without counsel, without the benefit of knowing what the financial consequences were,

[00:42:51] Speaker 00:
and with the prospect of facing criminal charges.

[00:42:54] Speaker 00:
So in conclusion, this court should reverse or vacate the entry of summary judgment against Mr. DeVos.

[00:43:00] Speaker 04:
All right, Mr. Chan, you are appointed by the court to represent Mr. DeVos.

[00:43:03] Speaker 04:
We thank you for your assistance.

[00:43:05] Speaker 04:
Thank you.