[00:00:00] Speaker 00:
Scorada versus DVA.

[00:01:13] Speaker 04:
Mr.. Wicks your honor Steven wakes on behalf of Timothy's karate the appellant we're here on the denial of his whistle claim under the whistleblower protection Enhancement Act the Administrative judge in this case before you get into the mayor theorem.

[00:01:32] Speaker 00:
Yes, but tell me what remedy you're seeking in this case.

[00:01:35] Speaker 04:
Yes compensatory damages under the whistleblower Act it's the only remedy

[00:01:42] Speaker 04:
that we can find.

[00:01:46] Speaker 00:
Well, how do you calculate compensatory damages?

[00:01:48] Speaker 00:
Where's the corrective action?

[00:01:50] Speaker 00:
I mean, it's supposed to be tied to the covered personnel action.

[00:01:54] Speaker 00:
What happened to him?

[00:01:55] Speaker 00:
And you're supposed to get, if you were to find in your favor, relief from that.

[00:02:01] Speaker 00:
So I don't understand.

[00:02:03] Speaker 00:
Where does compensatory damages come in?

[00:02:06] Speaker 04:
Well, Your Honor, let's look at what I'll call the broad claim, which is

[00:02:11] Speaker 04:
hostile work environment at large.

[00:02:15] Speaker 04:
And the issue is, if he was subjected to a hostile work environment as is claimed, in this case, intimidation against him as a whistleblower being shunned across the facility, being impugned by management, being investigated by management, the only remedy that we can find to that, short of the OSC

[00:02:39] Speaker 00:
Recommending disciplinary action against the alleged perpetrators in this case would be for compensatory damages under the whistleblower act and that would be I Understand you say that there's an overall kind of overarching claim about his being retaliated against we've got here are factual events that if the AJ considered and those are all kind of tangible the investigations the

[00:03:09] Speaker 00:
not being invited to meetings, having his overtime requests scrutinized.

[00:03:15] Speaker 00:
So those are the kinds of actions that you're seeking compensatory damages for?

[00:03:21] Speaker 04:
Well, yes.

[00:03:24] Speaker 04:
That's part of it.

[00:03:26] Speaker 04:
The AJ did not examine what we consider to be some of the bigger issues in the case.

[00:03:31] Speaker 04:
But back to your point, Your Honor, I believe the language of the amended whistleblower act, the Enhancement Act,

[00:03:39] Speaker 04:
Raises the prospect for compensatory damages and compensatory damages.

[00:03:44] Speaker 04:
I admit we would much rather be here with something of a of an explicit economic nature as a remedy to being harassed as my client contends for being a whistleblower, but it's all we have and that and that is reduced to a

[00:04:05] Speaker 04:
the non-economic, unliquidated damages.

[00:04:08] Speaker 00:
So you're saying the overall umbrella arching, you're calling it harassment, but the AJ was quite specific that you had made allegations about two investigations and an alleged change of duties.

[00:04:23] Speaker 00:
So those are all been dealt with by the AJ?

[00:04:27] Speaker 04:
That's correct.

[00:04:29] Speaker 04:
That's part of the case.

[00:04:32] Speaker 04:
But the AJ said that the investigations weren't personnel practices because there was no explicit threat of discipline.

[00:04:41] Speaker 04:
So the AJ dismissed that portion of the claim.

[00:04:46] Speaker 01:
The AJ also found that his superior, his boss, who was the person alleged to have taken these actions against him,

[00:04:58] Speaker 01:
had no knowledge of the earlier disclosure.

[00:05:01] Speaker 01:
So one of the primary factors in the whistleblower is that the disclosure has to have been a contributing factor to the action taken against you.

[00:05:09] Speaker 01:
And correct me if I'm wrong, but I thought I understood the AJ in this case to have found that there's no evidence that the supervisor who supposedly took these actions against him had any knowledge of the earlier disclosure.

[00:05:23] Speaker 04:
That is incorrect, Your Honor.

[00:05:25] Speaker 04:
OK.

[00:05:26] Speaker 04:
I mean, everyone who was involved in initiating the investigations, and let's just stick with the investigations at the moment, either knew about his status as a whistleblower or collaborated with one of the individuals who did.

[00:05:42] Speaker 04:
For example, Ms.

[00:05:44] Speaker 04:
Holman was one of the complainants to the AIB.

[00:05:49] Speaker 04:
She was told by Dr. Kurian, who was the person who outed

[00:05:54] Speaker 04:
my client as a whistleblower.

[00:05:56] Speaker 04:
While Ms.

[00:05:57] Speaker 04:
Holman was his supervisor, she was told by Dr. Curian, in the context of discussing issues that Ms.

[00:06:07] Speaker 04:
Holman claims she had with Mr. Scorada, to remember what happened to Dr. Strouder's just to hang in there.

[00:06:13] Speaker 00:
Let me dig a little deeper on that, because that's the AIB investigation.

[00:06:18] Speaker 00:
Is your complaint about that investigation, that the investigation was conducted?

[00:06:23] Speaker 00:
It seems to me your answer is that your complaint is that the people who brought the allegation that led to the investigation, right?

[00:06:35] Speaker 04:
No, it's both of those.

[00:06:36] Speaker 04:
But let me back up just a second, Your Honor.

[00:06:39] Speaker 04:
The conversation between Dr. Kurian and Ms.

[00:06:43] Speaker 04:
Holman wasn't about the AIB investigation.

[00:06:46] Speaker 04:
That was a conversation they were having

[00:06:48] Speaker 04:
While Ms.

[00:06:48] Speaker 04:
Holman was my client's supervisor, and Dr. Kurian said to her in discussing issues that Ms.

[00:06:55] Speaker 04:
Holman said she had with my client, just remember what happened to Dr. Struthers.

[00:06:59] Speaker 04:
That had nothing to do with the AIB, except to the extent that two months later, after that conversation occurred, Ms.

[00:07:07] Speaker 04:
Holman was one of the ones who filed a complaint

[00:07:10] Speaker 00:
That led to the AI that's my question so she I didn't know whether or not your charge about the investigation was that the complaint is that the investigation shouldn't have been conducted or you were complaining about the complainants coming forward with the complaint and that was the hostile work environment it's both because your honor if you look at the

[00:07:33] Speaker 00:
Don't you think that if given the nature of the allegations raised don't you think that the agency had an obligation to do an investigation?

[00:07:43] Speaker 04:
It's conceivable But I have to say if you look at the person who approved that investigation.

[00:07:49] Speaker 04:
That's director Mills He's the one who signed off on establishing the IP.

[00:07:55] Speaker 04:
He was the convening authority he had a conflict of interest that violates the requirements for

[00:08:02] Speaker 04:
the credentials for the convening authority, he was the appointing authority for Dr. Struthers.

[00:08:09] Speaker 04:
So he then is presented with these three complaints from people who all were made aware of whistleblower status except for Ms.

[00:08:18] Speaker 04:
Blocher, and I'll talk about her in a moment.

[00:08:20] Speaker 04:
So he gets these complaints that all dovetail back to his

[00:08:24] Speaker 04:
to Dr. Struthers, his appointee.

[00:08:27] Speaker 00:
OK, well, let me move.

[00:08:29] Speaker 00:
What happened to your client?

[00:08:31] Speaker 04:
He should have recused himself.

[00:08:34] Speaker 00:
What was the consequence of the investigation?

[00:08:36] Speaker 00:
What action was taken against your client?

[00:08:38] Speaker 04:
The consequence of the investigation at the end was that my client was told that he was guilty of the conduct that he was charged of in that investigation, but no discipline would be imposed.

[00:08:50] Speaker 04:
That was the result.

[00:08:53] Speaker 00:
So the covered personnel action is just the conduct of the investigation, since there was no action taken as a result of it?

[00:09:03] Speaker 04:
From our perspective, Your Honor, it's the threat that exists with the investigation.

[00:09:11] Speaker 04:
He's accused of multiple improprieties, sexual harassment, upward bullying of his supervisor, Ms.

[00:09:19] Speaker 04:
Harmon.

[00:09:19] Speaker 03:
Well, if the investigation had been legally improper, then I would think he'd be asking to have an expunged from the record that investigation because it reached the conclusion that he'd been guilty, even though no penalty was assessed.

[00:09:34] Speaker 03:
I didn't see you making that argument.

[00:09:37] Speaker 04:
Yeah, we did not pursue that because frankly, Your Honor, the far bigger issue in this case is this.

[00:09:44] Speaker 04:
We have two whistleblowers.

[00:09:47] Speaker 04:
who report Dr. Struthers as impaired.

[00:09:51] Speaker 04:
These employees are outstanding employees.

[00:09:54] Speaker 04:
No blemishes on their record.

[00:09:56] Speaker 04:
The performance evaluations are outstanding literally.

[00:10:01] Speaker 04:
After that, the agency levels multiple investigations against them.

[00:10:07] Speaker 04:
And there are a number, and these weren't all allowed into the record, and the witnesses weren't permitted to testify about all of these,

[00:10:14] Speaker 04:
But these investigations are then launched by the agency, along with a number of others.

[00:10:19] Speaker 01:
But are you saying that if someone witnessed a nurse violating a patient's privacy by conducting a meeting with him in the waiting room, that there shouldn't be an investigation of that sort of thing?

[00:10:33] Speaker 04:
No, I'm not saying that, Your Honor.

[00:10:34] Speaker 04:
I'm saying that this has to be analyzed in the context of the source of that.

[00:10:39] Speaker 01:
Well, the AJ had to assess whether or not

[00:10:42] Speaker 01:
the fact that he had made a whistleblower allegation in 2013 was a contributing factor to the conducting or the initiating of an investigation.

[00:10:52] Speaker 01:
And you've just admitted that it seems to me, I mean, I think it would be very strange indeed if the kinds of complaints that were made against him weren't at least investigated.

[00:11:03] Speaker 01:
I would be very disappointed in the government if people were to make these kinds of complaints against someone and the government said, eh,

[00:11:12] Speaker 04:
If these complaints hadn't come from people who were both aware of the whistleblowing and had made... So are you saying that whenever someone is aware of whistleblowing, they can't report action they believe to be improper?

[00:11:32] Speaker 01:
Or that there can't be an investigation once they report action that they're believed to be improper?

[00:11:37] Speaker 04:
I'm saying that if we can show.

[00:11:39] Speaker 01:
Because, boy, wouldn't that insulate somebody's potentially bad behavior?

[00:11:43] Speaker 01:
And I'm not saying your client did that.

[00:11:44] Speaker 01:
But if you make a protective whistleblower, then you can do whatever you want wrong.

[00:11:48] Speaker 01:
And you'll just tell everybody, hey, I'm a whistleblower.

[00:11:50] Speaker 01:
This is what I disclosed.

[00:11:51] Speaker 01:
So everybody knows it, what you've disclosed.

[00:11:53] Speaker 01:
Now they're all tainted.

[00:11:55] Speaker 01:
And none of them can report anything bad you do after that.

[00:11:57] Speaker 04:
No, I'm saying, Your Honor, is that

[00:12:01] Speaker 04:
Certainly investigations could occur.

[00:12:03] Speaker 04:
What I'm saying is that if we can show that these investigations wouldn't have occurred but for my client's status as a whistleblower, then that my client is entitled to protection under the Whistleblower Act for that.

[00:12:19] Speaker 04:
Because the antithesis of that would be this.

[00:12:24] Speaker 00:
So how have you shown that?

[00:12:26] Speaker 00:
The AHA didn't make any findings.

[00:12:28] Speaker 00:
about that?

[00:12:29] Speaker 04:
Well, we're saying you should have.

[00:12:31] Speaker 04:
The AJ didn't look at, never looked at the question.

[00:12:35] Speaker 04:
The fact that, it's a fact, the fact that the people who initiated these investigations were both aware of the whistleblower status and had made very disparaging remarks about my client because of his whistleblowing.

[00:12:47] Speaker 04:
And that's in the record.

[00:12:49] Speaker 04:
So we have, they're being called sharks.

[00:12:53] Speaker 04:
Ms.

[00:12:54] Speaker 04:
Holman says, well, the whole agency knows about

[00:12:57] Speaker 04:
your bad conduct as a supervisor, which is directly the opposite of what his performance appraisals show.

[00:13:06] Speaker 04:
So all we're saying is this.

[00:13:08] Speaker 04:
If my client can prove that these people A, knew about or were being motivated by his whistleblower status in initiating these investigations, and these investigations come up empty, that that's part and parcel of, that's retaliation, and that

[00:13:27] Speaker 04:
Because the opposite of this, or the absence of this conclusion will be this.

[00:13:33] Speaker 04:
Then they can take what Altuna has done.

[00:13:36] Speaker 04:
They've weaponized investigations.

[00:13:38] Speaker 04:
So in this case, we have all of these investigations launched against not only the whistleblowers, but their witnesses.

[00:13:46] Speaker 04:
They're all being investigated.

[00:13:48] Speaker 00:
Did you allege when you said the remedy?

[00:13:51] Speaker 00:
We started with time out the remedy, and you said you were asking for compensatory damages.

[00:13:55] Speaker 00:
Have you put any number on that amount?

[00:13:57] Speaker 04:
Well, we can't do that.

[00:13:59] Speaker 04:
I mean compensatory damages in this case would be unliquidated.

[00:14:03] Speaker 04:
Now, certainly, this is one of those cases, Your Honor, where you can make a demand, but the determination of the actual- You get a dollar.

[00:14:12] Speaker 04:
Right.

[00:14:12] Speaker 00:
OK, let me ask you.

[00:14:13] Speaker 00:
You make a statement at page 37 of your blue brief that in Garada's view, the intentional outing of his protected disclosure, dot, dot, dot, is the legal equivalent of a sexual assault in a hostile work environment case.

[00:14:30] Speaker 04:
Yeah.

[00:14:30] Speaker 00:
I don't follow what you're talking about.

[00:14:32] Speaker 04:
What I'm saying is this.

[00:14:33] Speaker 04:
If you look at the law on sexual harassment, the law is that there needs to be a course of conduct, severe and pervasive.

[00:14:43] Speaker 04:
That's the standard under Harris.

[00:14:46] Speaker 04:
But the exception to that is that you can have an event that is severe enough that it constitutes harassment by itself without having severe and pervasive

[00:14:58] Speaker 04:
and a course of conduct.

[00:14:59] Speaker 00:
Yeah, and in the one case you cite for that proposition, it's that a coworker rape qualified as harassment under Title VII.

[00:15:06] Speaker 00:
Right.

[00:15:07] Speaker 00:
And that's what you're analogizing this case to.

[00:15:08] Speaker 04:
Well, I'm saying in this context, I'm not saying those two are equivalents in reality.

[00:15:14] Speaker 04:
I'm saying legally that a hostile work environment claim, in our opinion, should arise where the whistleblower, as happened here, was outed to the subject of his report.

[00:15:28] Speaker 04:
directly.

[00:15:30] Speaker 04:
Because the consequence of that is exactly what happened at this facility.

[00:15:34] Speaker 04:
After that happened, the subject of his report handed my client a list of recruiters and said, you're not going anywhere here.

[00:15:44] Speaker 04:
You need to leave.

[00:15:45] Speaker 00:
That hasn't proven to be true, has it?

[00:15:48] Speaker 04:
Oh, yeah.

[00:15:49] Speaker 04:
It was undisputed.

[00:15:50] Speaker 00:
No, that he isn't going anywhere.

[00:15:53] Speaker 00:
I mean, when did that happen?

[00:15:54] Speaker 00:
Hasn't he had a resolution?

[00:15:55] Speaker 04:
Well, he hasn't had any promotions.

[00:15:58] Speaker 04:
Not going anywhere.

[00:15:59] Speaker 00:
Has he been entitled to promotions?

[00:16:02] Speaker 00:
That's not part of your view.

[00:16:03] Speaker 00:
You haven't alleged that, right?

[00:16:05] Speaker 04:
Well, we didn't.

[00:16:07] Speaker 04:
I can't go beyond that record as it exists.

[00:16:11] Speaker 04:
But the point of this is that the idea behind the Savage case is that harassment constitutes or is made up of actions that would have a chilling effect on whistleblowers.

[00:16:29] Speaker 04:
And what we're saying to you is that if there was ever a case where you would have a chilling effect, it's this kind of case where the whistleblower is outed after the report, is subjected to multiple investigations, is shunned across the facility, and what, there's no remedy for that?

[00:16:51] Speaker 04:
I mean, the point is that if that's permitted, then there's no restraint upon the agency

[00:16:58] Speaker 04:
to continue to harass my client or anyone else or the witnesses.

[00:17:05] Speaker 04:
And in particular, the AJ kept out all the witness testimony about the consequences of harassment of the witnesses because of the investigations that they were subjected to by Director Mills and by other mid-level management in that facility after they became a finance in the whistleblower case.

[00:17:26] Speaker 00:
We're well into our rebuttal, so why don't we hear from the government?

[00:17:29] Speaker 00:
Can I just get one point of clarification?

[00:17:30] Speaker 00:
You said multiple investigations, but I could tell there were two.

[00:17:33] Speaker 04:
Well, there were more in the record that weren't permitted in.

[00:17:38] Speaker 04:
So they weren't in the record.

[00:17:40] Speaker 03:
Unless we rule on the evidence, we've got to deal with what's in front of us.

[00:17:45] Speaker 03:
Three investigations?

[00:17:45] Speaker 03:
Two.

[00:17:46] Speaker 03:
I thought there were two.

[00:17:47] Speaker 04:
Two.

[00:17:48] Speaker 04:
Well, there were two privacy investigations and the AIB.

[00:17:54] Speaker 04:
Thank you.

[00:18:05] Speaker 02:
Good morning and may it please the court.

[00:18:08] Speaker 02:
The administrative judge denied Mr. Scorada's request for a corrective action because he failed to demonstrate that there was any prohibited personnel practice that took place.

[00:18:17] Speaker 02:
And I think that while you were talking a lot about the details with Mr. Scorada's counsel just now, I think it's important to take a step back and look at what the AJ actually did here.

[00:18:28] Speaker 02:
He determined that there were three, and Mr. Scorada raises, three different errors about

[00:18:34] Speaker 02:
personnel actions that he claimed took place and that they were prohibited.

[00:18:38] Speaker 02:
The administrative judge in this case concluded that Mr. Scorato was not subjected to any personnel action, and certainly not a prohibited personnel action, as a result of his whistleblowing activity.

[00:18:52] Speaker 02:
So for instance, one of the first errors that Mr. Scorato alleges is that the AAB investigation was itself a personnel action and it was a prohibited personnel action.

[00:19:04] Speaker 02:
But the administrative judge correctly determined that investigations themselves are not, per se, a personnel action.

[00:19:12] Speaker 02:
The MSPB has held that for quite a while in this Johnson v. Doj case.

[00:19:18] Speaker 03:
The MSPB, what we're dealing with here is a body of law at the MSPB that has really never surfaced in this court.

[00:19:27] Speaker 03:
There's one non-precedential opinion that comes out of one of these investigation cases that doesn't tell us much.

[00:19:35] Speaker 03:
The board has a body of law that says, in certain circumstances, a pattern of investigations can be hurtful to the government's case.

[00:19:44] Speaker 03:
Why don't you explain to us what you understand the MSPB's doctrine to be on this point?

[00:19:50] Speaker 02:
So to be clear, investigations are not irrelevant to the question of whether there could have been a prohibited personnel action.

[00:19:58] Speaker 02:
As the MSPB... Well, explain to me.

[00:20:01] Speaker 03:
You're aware of the body of cases?

[00:20:02] Speaker 03:
Sure.

[00:20:04] Speaker 02:
Yes.

[00:20:04] Speaker 02:
And as the MSPB is held in its Russell v. Department of Justice case, it stated that the board will consider evidence regarding the conduct of an agency investigation when the investigation was so closely related to the personnel action that it could have been a pretext for gathering evidence to retaliate against an employee for whistle-blowing activity.

[00:20:22] Speaker 02:
In that case, the MSPB dealt with the prison guard who

[00:20:28] Speaker 02:
blown the whistle on the warden.

[00:20:30] Speaker 02:
The warden then later initiated an investigation into the whistleblower.

[00:20:36] Speaker 02:
And the MSPB determined that because that investigation was really pretext to retaliate against the whistleblower by the warden.

[00:20:44] Speaker 03:
Just stop right there and put this case in a thing.

[00:20:47] Speaker 03:
We've got the client, the appellant here, who blew the whistle against somebody, right?

[00:20:53] Speaker 02:
Correct a boss and later somebody who knew about all that starts an investigation against his client So there's there's two reasons why it's not applicable in this situation first it was not a Pretext because as the administrative judge clearly held and as judge more recognized Three different employees filed complaints against mr.. Scorada at the VA Medical Center in Altoona

[00:21:20] Speaker 02:
And the administrative judge said it was, quote, it would have been foolhardy for the agency to ignore these complaints.

[00:21:27] Speaker 02:
So therefore, the existence of at least the AIB investigation was not a pretext to retaliate against Mr. Scarada.

[00:21:36] Speaker 02:
The other part of that issue is there was no threat of discipline

[00:21:47] Speaker 02:
merely being subject to an investigation.

[00:21:49] Speaker 02:
And what the administrative judge also looked at was, can an investigation be so burdensome so as to constitute a prohibited personnel action under 5 US code section 2302A12?

[00:22:02] Speaker 02:
And that's the catch-all provision that talks about that it can be a prohibited personnel action if an employee is subject to a significant change in his duties, responsibilities, or working conditions.

[00:22:15] Speaker 01:
OK, so let's move on to that second argument, because he alleges his workload was changed and his duties diminished.

[00:22:22] Speaker 01:
He alleges that Dr. Watson was the superior officer, the boss who did it.

[00:22:28] Speaker 01:
And doesn't the AJ expressly find there's no evidence suggesting that Dr. Watson had any knowledge of the earlier whistleblower activities?

[00:22:37] Speaker 01:
Yes.

[00:22:39] Speaker 01:
So that cuts that one gone, right?

[00:22:40] Speaker 01:
So we've got investigations.

[00:22:41] Speaker 01:
We've got workload.

[00:22:42] Speaker 01:
What was the third?

[00:22:44] Speaker 02:
Well, just in the interest of full disclosure, Dr. Watson was one of multiple people that Mr. Scorada had retaliated against Mr. Scorada.

[00:22:56] Speaker 02:
And there are other people who did, in fact, have knowledge of his whistleblowing, who Mr. Scorada also claims was involved in this retaliation.

[00:23:02] Speaker 01:
Were involved in the decision to supposedly reduce his workload?

[00:23:07] Speaker 02:
Well, no, not for that particular.

[00:23:08] Speaker 01:
That's why I said we're focusing on each one individually.

[00:23:11] Speaker 01:
OK, workload gone.

[00:23:13] Speaker 01:
Well, workload gone, right.

[00:23:14] Speaker 01:
Because if they failed to allege one of the critical aspects, then even if that is a prohibited personnel action, they have failed to allege that the decision maker had any knowledge at all.

[00:23:27] Speaker 01:
So not a contributing factor.

[00:23:28] Speaker 01:
I don't see how we could possibly reverse that, especially under our standard review.

[00:23:32] Speaker 01:
The investigation point, I feel like you have covered.

[00:23:35] Speaker 01:
You've investigated it thoroughly.

[00:23:36] Speaker 01:
So what else is there?

[00:23:38] Speaker 02:
Mr. Scorato alleges that.

[00:23:40] Speaker 02:
Some of the allegations, well, the Administrative Judge concluded that for some of his allegations with regard to this significant change in duties, responsibilities, or working conditions were mirrorless.

[00:23:49] Speaker 02:
For instance, Mr. Garada's allegation that he was disinvited to meetings at 8PPX 18, the Administrative Judge specifically

[00:23:57] Speaker 02:
credited the testimony of witnesses and said that I simply don't believe that he was disinvited to those meetings.

[00:24:02] Speaker 02:
So that wasn't a basis for his allegation that there was a change in his duties and responsibilities or working conditions.

[00:24:10] Speaker 02:
The same is true for his removal as the selecting official for an audiologist.

[00:24:16] Speaker 02:
The AJA determined that that was not a personnel action.

[00:24:19] Speaker 02:
Mr. Scorada claims that

[00:24:21] Speaker 02:
It was.

[00:24:21] Speaker 02:
He doesn't provide any basis or authority for claiming that the removal as a selecting official is a personnel action.

[00:24:27] Speaker 02:
And he also alleges that because he was forced to choose his second option for the audiologist, that potentially in the future, the less qualified new hire would somehow screw up, which then would reflect poorly on his department and him specifically.

[00:24:46] Speaker 02:
And he would be subject to some sort of discipline as a result of that.

[00:24:49] Speaker 02:
The AJ specifically found that that potential future harm was too remote to be considered any significant change in the duties, responsibilities, or working conditions.

[00:25:02] Speaker 00:
Anything further?

[00:25:05] Speaker 02:
Unless the court has further questions for me, we'd respectfully request that you affirm the- And I read the line of ornication.

[00:25:11] Speaker 03:
about whether or not you should get worried about a succession of investigations.

[00:25:17] Speaker 03:
It struck me that in two or three of those opinions, the board was essentially focusing on the government's argument, well, we would have done it anyhow.

[00:25:29] Speaker 03:
The government's defense.

[00:25:31] Speaker 03:
And they were looking at the instigation of baseless investigations as showing animus

[00:25:40] Speaker 03:
in the mind of the hiring agency so as to undermine that leg of the proof that it would have done it anyhow.

[00:25:50] Speaker 03:
And I wondered whether or not that really isn't where this line of assuming that we were to agree with your adversary, that a line of investigations took place here that are problematic.

[00:26:06] Speaker 03:
The question is, do you fit them under the prohibited personnel practice shell and use it as an analytic tool there, or do you use it instead to say it only comes into play when the government is trying to argue we would have taken the discipline anyhow, et cetera, et cetera?

[00:26:25] Speaker 02:
Well, I think that if I understand your question, you're really asking about whether the analysis should be properly brought under the car factors.

[00:26:33] Speaker 02:
If there isn't a personnel action,

[00:26:36] Speaker 02:
And would the agency have taken it in any event?

[00:26:39] Speaker 02:
I think in this case, to get to that question, you have to first answer, well, was it a personnel action?

[00:26:47] Speaker 02:
And was there some sort of animus?

[00:26:49] Speaker 02:
Here, for the reasons I talked about a moment ago with regard to pretext, there's three different complainants.

[00:26:55] Speaker 02:
It wasn't undertaken as a result of animus.

[00:27:00] Speaker 02:
And there's also, I think, an argument that could be made for,

[00:27:04] Speaker 02:
an investigation that becomes so onerous and burdensome to an employee that it becomes a significant change to his duties, responsibilities, and working conditions.

[00:27:12] Speaker 02:
So if he was required to meet with investigators twice a week for four hours.

[00:27:15] Speaker 02:
What about hostile work environment?

[00:27:16] Speaker 02:
Well, that hostile work environment, this court has never held that a hostile work environment or the creation of such an environment is itself a prohibited personnel action.

[00:27:24] Speaker 03:
The court has for years.

[00:27:28] Speaker 03:
elided the issue, or it hasn't been presented to us.

[00:27:31] Speaker 02:
Correct.

[00:27:32] Speaker 02:
And so it would otherwise, as we described in our brief, be subject to the analysis in 2302A2A12, which asks, is it a significant change of responsibility?

[00:27:44] Speaker 02:
So if an investigation was so onerous to an employee, then potentially it could fall within that A12 section.

[00:27:52] Speaker 02:
In this case, Mr. Skrata was only interviewed a single time for all three of those investigations.

[00:27:56] Speaker 02:
So the administrative judge concluded properly that even if the court were to analyze under the hostile working environment catch-all provision, it still wouldn't have qualified as a personal action.

[00:28:08] Speaker 00:
Thank you.

[00:28:09] Speaker 00:
Thank you.

[00:28:10] Speaker 02:
Thank you.

[00:28:13] Speaker 00:
We'll restore two minutes of rebuttal.

[00:28:16] Speaker 00:
Just one, OK.

[00:28:18] Speaker 04:
I have to confess, I think it's just one.

[00:28:21] Speaker 04:
And Judge Moore, with respect to the question you asked me earlier, I do apologize that I'd forgotten about Dr. Watson.

[00:28:28] Speaker 04:
He came in after Ms.

[00:28:30] Speaker 04:
Holman as my client supervisor.

[00:28:32] Speaker 04:
He was not aware of the whistleblowing.

[00:28:35] Speaker 04:
Frankly, there wasn't anything he did that was of any significance in this case, at least from my perspective.

[00:28:42] Speaker 04:
that we thought he was an issue.

[00:28:44] Speaker 04:
Thank you for clarifying.

[00:28:45] Speaker 04:
Thank you.

[00:28:45] Speaker 04:
We thank both sides and the case is submitted.