[00:00:00] Speaker 05: Now, will you approach the podium? [00:00:02] Speaker 05: And I invite Judge Chen to make an appropriate motion. [00:00:06] Speaker 02: Thank you, Judge Newman. [00:00:08] Speaker 02: Good morning. [00:00:09] Speaker 02: I move the admission of Tanya Mano, who is a member of the bar and is in good standing with the highest courts of California and the District of Columbia. [00:00:19] Speaker 02: I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications. [00:00:24] Speaker 02: I know all these things because Ms. [00:00:26] Speaker 02: Mano has been serving as one of my clerks for the past year. [00:00:30] Speaker 02: And from the very beginning, she has been an outstanding clerk in every way. [00:00:38] Speaker 02: She's really been so helpful in her service to the court and helping me from not making mistakes while at the same time just showing how she is a high caliber person and attorney as well as someone with great character. [00:00:57] Speaker 02: I respectfully request that the court grant my motion. [00:01:03] Speaker 05: Thank you. [00:01:03] Speaker 05: The panel will vote on the motion. [00:01:05] Speaker 05: Do you have a vote, Judge? [00:01:06] Speaker 03: I've considered all the supporting papers, and I've heard what Judge Chen has to say, and I support his motion. [00:01:13] Speaker 05: And I, too. [00:01:14] Speaker 05: So Ms. [00:01:15] Speaker 05: Manner, will you approach the clerk for administering the oath? [00:01:22] Speaker 04: Do someone swear or affirm that you will report yourself as an attorney and counsel [00:01:34] Speaker 05: Thank you, and welcome to the bar, Ms. [00:01:36] Speaker 05: Manor. [00:01:37] Speaker 05: We look forward to your arguments in the future. [00:01:40] Speaker 05: And we shall proceed with the arguments scheduled for this morning. [00:01:45] Speaker 05: The first argued case is number 181774, Winterton, against the MSPB, Mr. Islam. [00:02:12] Speaker 00: Good morning. [00:02:14] Speaker 00: My name is Muqman Islam. [00:02:16] Speaker 00: Before I begin, I wanted to do a brief explanation. [00:02:18] Speaker 00: I know the opposing counsel mentioned some concerns of a waiver in the Federal Rules of Appellate Procedure 28. [00:02:23] Speaker 00: I just wanted to identify that, for the most part, I believe that all of the information and arguments that will be presented today are clearly cited in the brief of petitioner. [00:02:33] Speaker 00: There were some conclusionary arguments or summation of facts. [00:02:36] Speaker 00: They may not have been explicitly cited to, but they were included in the exhibits and attached to them, addendum to the brief as well as the appendix. [00:02:45] Speaker 00: And if there are any aspects of that, I can flesh that out today. [00:02:50] Speaker 00: With that being said, this is a case in my opinion, which is a complete issue of the ruling of law. [00:02:56] Speaker 00: The hearing of the board in this decision, I felt as though in the evidentiary aspect, did address a lot of the accurate facts. [00:03:03] Speaker 00: The problem was when they applied the furlough test, [00:03:06] Speaker 00: in regards to totality of the circumstances that was applied inappropriately according to the law. [00:03:11] Speaker 00: In this case is a simple case, not simple case, but it's a case of an air traffic controller who had over a 15-year career with the Department of Transportation, FAA. [00:03:21] Speaker 00: In that regard, [00:03:22] Speaker 00: Since September of 2015, he had a new manager. [00:03:26] Speaker 00: And from that period on, from September 2015 until August 2015, you had numerous incidents occurring at this Napa tower, which caused him and other air traffic controllers to make numerous complaints against the manager. [00:03:39] Speaker 00: And then eventually, at one point, it was investigated by the Office of Inspector General. [00:03:43] Speaker 00: And it's very important to understand that when they were investigated by the Office of Inspector General, it then turned it to a completely different situation, because now, [00:03:51] Speaker 00: Anything that they say, anything, could be subject to criminal prosecution. [00:03:56] Speaker 00: So this was a big deal for him. [00:03:57] Speaker 03: One thing, AJ had an exhaustive opinion here. [00:04:03] Speaker 03: She did. [00:04:03] Speaker 03: Looked at all the issues, made credibility determinations. [00:04:07] Speaker 03: And I realize you say that you have legal arguments. [00:04:10] Speaker 03: But what do you say about the factual determinations [00:04:15] Speaker 03: that the administrative judge made, because I would be surprised if your legal arguments would be able to withstand those factual determinations. [00:04:26] Speaker 03: Where did the judge go wrong on the facts in your view? [00:04:30] Speaker 00: She went wrong in the third element of the fraud test. [00:04:32] Speaker 00: So basically, in my opinion, she identified that this was a serious issue. [00:04:37] Speaker 00: Mr. Winterson due to his health and the stress that was occurring at the workplace. [00:04:40] Speaker 00: What issue did you say she went wrong on? [00:04:42] Speaker 00: On the third aspect, saying that there was no improper action from the agency. [00:04:46] Speaker 00: So in a coercion test, in order to establish that she has to [00:04:49] Speaker 00: I believe she identified that even in an objective standard, Mr. Winterton did have significant health issues that was accumulated based upon the stress of the work. [00:04:59] Speaker 00: And because of that, that's why he resigned. [00:05:00] Speaker 00: And generally speaking, he didn't have a free choice. [00:05:04] Speaker 00: But where she went wrong was she alleged that there was no improper actions by the agency. [00:05:09] Speaker 00: And my opinion is that if you look at the facts, there are numerous things that occurred [00:05:12] Speaker 00: throughout this process that was improper by the agency that she did not consider. [00:05:16] Speaker 00: For example, or at least she found on the opposite side of the law. [00:05:20] Speaker 00: For example, the initial accountability board that was done in September 2015 or October 2015, this accountability board was supposed to be a sexual harassment allegation by one air traffic controller. [00:05:32] Speaker 00: There were at least seven of the air traffic controllers brought into investigation about things that were not relevant. [00:05:38] Speaker 00: And you also have to remember that my client was the air traffic controller union representative at the time. [00:05:42] Speaker 00: So he was serving the capacity of working with management and with the air tracker controllers and heard all of these complaints. [00:05:48] Speaker 00: And he made numerous complaints over a two or three month process, and they went unfounded. [00:05:54] Speaker 00: Secondly, I think she went wrong in that she ignored the fact that he was threatened by the union representative who was working at this time, in my opinion, closely with the management and the evidence of that incident. [00:06:05] Speaker 03: Are you referring to the testimony in the record to the effect that two representatives of the union met with Mr. Winterton and then sort of toned things down a bit? [00:06:14] Speaker 00: Pretty much. [00:06:15] Speaker 00: And not just toned things down, but they literally said if the complaints are, if they don't stop the complaints, [00:06:20] Speaker 00: And then, mind you, he never was complaining this time. [00:06:22] Speaker 00: He was complaining on behalf of other people. [00:06:24] Speaker 00: But if they don't stop, air traffic controllers don't stop the complaints, he could be removed from position. [00:06:28] Speaker 00: Now, the reason why that's important is because shortly before that, you also remember Mr. McCoy, who was that part of one of those union officials, he met with Mr. Tom DiBernardo, who was the district manager, and talked to him and said their line, or there was some discussion about that. [00:06:42] Speaker 00: That's the second thing that I think that the judge just missed. [00:06:47] Speaker 03: The last thing is, if you look at it- So you're saying there was an error. [00:06:49] Speaker 03: on the part of the administrative judge in not looking at these other complaints that were being made? [00:06:56] Speaker 00: The lack of investigating those complaints. [00:06:58] Speaker 00: It's one thing if the complaints occur and they investigated, then I would agree with you that it is no error. [00:07:04] Speaker 00: But the issue is that when these investigations or complaints go on for a period of time and there's no investigation into them, there's no quote unquote thoroughness of determining if these complaints have any seriousness, then that becomes a big coercion. [00:07:19] Speaker 00: The last aspect is the OIG investigation. [00:07:22] Speaker 00: Here's why that's really important. [00:07:24] Speaker 00: The timeline of that just does not add up. [00:07:27] Speaker 00: So for example, hearing this, I think the Ministry of Law is your biggest error. [00:07:32] Speaker 00: She relies on Mr. Thomas's statement, where he says that it was a security investigation, which is not the criminal side. [00:07:41] Speaker 00: It's just simply agency. [00:07:43] Speaker 00: Is this the investigation that rose out of the alleged work slowdown? [00:07:48] Speaker 00: Yes, alleged work stoppage. [00:07:49] Speaker 00: But here's what's interesting, right? [00:07:51] Speaker 00: So first, you have the security investigation allegedly come in [00:07:54] Speaker 00: And they're supposed to investigate the complaints that were sent to the administrative court. [00:07:59] Speaker 00: So the administrator of the agency of FAA receives a complaint by all of the majority of the air traffic controllers at Napa Tower, receives this complaint. [00:08:08] Speaker 00: His district management tells the individuals, Ms. [00:08:12] Speaker 00: Tom DiMunardo, as well as the air traffic control manager at the facility, [00:08:17] Speaker 00: We are going to investigate the complaints of the air traffic controllers. [00:08:22] Speaker 00: We are not looking at work stoppage. [00:08:24] Speaker 00: That's where there's a specific directive. [00:08:27] Speaker 00: Then a month or two months later, there is an investigation coming by where only two witnesses are interviewed. [00:08:33] Speaker 00: And the only two witnesses are the air traffic controller manager, who was the one who was being complained against, and the lady who, the other air traffic controller who made an allegation that she overheard the collusion of them alleging this work stoppage. [00:08:45] Speaker 00: And this is where, again, I think the administrative judge made a complete detour of the error law, is that she relies on this information as fact. [00:08:56] Speaker 00: But the problem is that they were aware- What information did she rely on this time? [00:09:01] Speaker 00: I'm sorry. [00:09:02] Speaker 00: Let me back that up for a second. [00:09:04] Speaker 00: So the argument put forth by the agency is that Tom DeBernardo states that when the investigation comes out to look into the air traffic controller's complaint, they find out about this alleged work stoppage, and they refer it to the Office of Inspector General. [00:09:20] Speaker 00: That's the timeline that they propose. [00:09:23] Speaker 00: But that's not accurate to the fact that it was presented to her nor in the record. [00:09:26] Speaker 00: So for example, what's ever is that the agency, because Ms. [00:09:32] Speaker 00: Sandra Holcomb sends an email to everyone on April 7th. [00:09:37] Speaker 00: telling everyone that, hey, there is this person who has this information. [00:09:42] Speaker 00: She's willing to tell anyone because this can't go on. [00:09:45] Speaker 00: So they already know, as of April of 2016, that there's someone who alleges that there could have been work stoppage. [00:09:50] Speaker 00: They're aware of this. [00:09:51] Speaker 00: But yet, on top, despite that, the April 12th email from the director or the executive in the district office tells them, we're not looking at work stoppage. [00:10:00] Speaker 00: So how does the administrative law judge justify that in June, [00:10:05] Speaker 00: roughly, there is now an OIG investigation, which is now a criminal investigation, based upon an information that was presented to the ash of the security investigation, which the agency already was aware of. [00:10:17] Speaker 00: Not only was the agency aware of it, Ms. [00:10:19] Speaker 00: Holcomb was aware of it, Mr. Tom DiBernardo was aware of it, everyone was already aware, as of April, that this occurred. [00:10:24] Speaker 00: And the administrative law judge didn't address that at all. [00:10:27] Speaker 00: That's a significant issue. [00:10:28] Speaker 03: You're saying the gap between the initial awareness of the facts and the implementation of the investigation [00:10:33] Speaker 00: That's an issue, but the bigger issue is that they were aware of it in April, but they allege that in June, the disclosure of this information justified the OIG investigation. [00:10:45] Speaker 00: That just does not add up. [00:10:46] Speaker 00: Because if you have a situation where they're aware in April and told, do not look into this, told this is not an issue, [00:10:53] Speaker 00: then when the investigation starts in June, there's no way that the air security, which is a part of the FAA, which is under administrative order, which is under the district. [00:11:02] Speaker 02: What I'm trying to understand is, are you saying if there is information that management learns that there was some kind of work stoppage among all the air traffic controllers in the Napa Valley airport, that if they learn about it in April, [00:11:20] Speaker 02: By the time of June, they're not allowed to have an investigation of it? [00:11:24] Speaker 02: No, I'm saying- Because that would be a- it is a criminal act if there is some conspiracy of all the ATCs to not show up to work. [00:11:32] Speaker 00: I would agree with you, Judge Shannon. [00:11:34] Speaker 00: I'm not saying that they're not allowed to delay the investigation. [00:11:37] Speaker 00: What I am saying is you can't use that- the disclosure of it in June justified the point of down during the OIG investigation because they were aware of it as early as April. [00:11:47] Speaker 02: So if you're aware of this and I guess I'm, I'm, I don't understand why it's an improper agency action to decide to do an OIG investigation in June of 2016. [00:11:58] Speaker 00: Because you have the administrators or the district office is telling them we're not looking into this. [00:12:03] Speaker 00: We're going to look into the ATC's investment complaints. [00:12:07] Speaker 00: And then on the same timeline, you have Mr. Tom DiBernardo. [00:12:10] Speaker 00: as well as Ms. [00:12:10] Speaker 00: Holcomb, pressing for a security investigation, looking into the work stoppage. [00:12:15] Speaker 00: They're told not to do it. [00:12:17] Speaker 00: Then you come down two months later, and only two people are interviewed, and one of them is Ms. [00:12:21] Speaker 00: Holcomb. [00:12:22] Speaker 00: None of the air traffic controllers were interviewed. [00:12:24] Speaker 00: So when I'm arguing that this is misrepresentation, or at least deception, [00:12:28] Speaker 00: Because in the investigation, they were supposed to look at the air traffic controller's complaints. [00:12:33] Speaker 00: They didn't even do that. [00:12:34] Speaker 00: Instead, they only interviewed the two people who was associated with the knowledge of the work stoppage. [00:12:40] Speaker 00: And then immediately, the OIG began the investigation. [00:12:43] Speaker 00: I believe I asked for five minutes of rebuttal, so. [00:12:46] Speaker 00: Yes. [00:12:47] Speaker 00: Let's hear from the other side. [00:12:49] Speaker 00: Thank you. [00:13:01] Speaker 01: May it please the court. [00:13:05] Speaker 01: After holding a three-day hearing, an MSTB administrative judge issued a 35-page initial decision that analyzed the evidence and Mr. Winterton's various allegations and arguments. [00:13:16] Speaker 01: She properly concluded that Mr. Winterton failed to prove that his retirement was involuntary. [00:13:21] Speaker 01: In so finding, she considered all of the actions that Mr. Winterton is now alleging that she failed to consider, including the questions asked during the 2015 investigation into the allegations of sexual harassment by JH. [00:13:35] Speaker 02: Could you just respond to what your opposing counsel was arguing? [00:13:39] Speaker 01: Sure. [00:13:40] Speaker 02: Instead of running through the brief? [00:13:42] Speaker 01: Well, specifically, with respect to the OIG investigation, if you look at page 28 of the initial decision, she did consider the argument that Mr. Winterton raised there, that there was a problem with the timing of the OIG investigation and the fact that it was [00:13:59] Speaker 01: Originally, Ron Fincher had determined that the work stoppage would not be included as part of the ASH investigation. [00:14:07] Speaker 01: However, she went through the timeline of events. [00:14:09] Speaker 01: She recognized that when Ms. [00:14:11] Speaker 01: Holcomb and A.C. [00:14:12] Speaker 01: were interviewed by ASH personnel in April or May of 2015, [00:14:17] Speaker 01: They discussed the fact that they believed there was a work stoppage. [00:14:20] Speaker 01: She found that it was not improper for them to tell ASH this. [00:14:24] Speaker 01: And then what they did, ASH officials who had no relationship with anyone at the Napa facility decided that the ASH investigation should be suspended while the work stoppage was investigated by the IG. [00:14:37] Speaker 01: And that's, in fact, what happened. [00:14:38] Speaker 01: The IG investigation began in June. [00:14:41] Speaker 01: After the IG investigation was concluded in August, it was determined that the Ash investigation would resume. [00:14:49] Speaker 01: And the evidence of record shows that it did, although Mr. Winterton didn't choose to put anything on at his hearing before the MSPB administrative judge about what the outcome of that investigation was. [00:15:00] Speaker 01: But the timeline of the- Do you know what the outcome was? [00:15:03] Speaker 01: I don't know what the outcome was. [00:15:04] Speaker 01: And neither did Mr. DiBernardo at hearing also did not know what the outcome was. [00:15:09] Speaker 01: But I represent the MSPB, the agency may know. [00:15:12] Speaker 01: But there was nothing put on before the MSPB that spoke to what the outcome. [00:15:17] Speaker 02: Is there a reason why the ASH investigation couldn't go on at the same time as the OIG investigation? [00:15:22] Speaker 01: I'm not aware of one. [00:15:23] Speaker 01: Again, I represent the MSPB. [00:15:25] Speaker 01: But it was ASH determined that they would suspend that investigation until the OIG investigation was concluded. [00:15:31] Speaker 01: That was the security personnel's [00:15:33] Speaker 01: determination and why they made that determination, I don't know. [00:15:37] Speaker 05: But isn't the outcome significant, highly significant, to whether or not this precautionary action of resignation was justified? [00:15:48] Speaker 01: In what sense? [00:15:49] Speaker 01: I'm sorry, I don't understand. [00:15:50] Speaker 01: The outcome of the Ash investigation? [00:15:52] Speaker 01: But Mr. Winterton has the burden of showing that there was an improper agency action, and so if he believes that something was improper as a result of the Ash investigation, [00:16:02] Speaker 01: then it was his job to find that out through discovery and put something onto that effect at hearing. [00:16:07] Speaker 01: The MSPB has no independent knowledge of what happened as a result of the security investigation. [00:16:14] Speaker 01: In addition, with respect to Mr. Winterson's argument about union representatives telling him to cut back on the complaints, there is no evidence in the record that management had any involvement with that union decision. [00:16:28] Speaker 01: It is true that the union said he needed to learn to work with Ms. [00:16:31] Speaker 01: Holcomb, [00:16:32] Speaker 01: or they would replace him for some labor management relations purposes. [00:16:37] Speaker 01: However, no evidence was deduced that that was at the request of management or that management had any control of the union's decision in that regard. [00:16:48] Speaker 01: Finally, with regard to citations to the record and the brief, [00:16:52] Speaker 01: There are certain things that were cited in the brief that are simply inaccurate that were presented as facts, such as the allegation that there were multiple searches through the tower cabin and air traffic controller's belongings. [00:17:04] Speaker 01: There's no evidence in the record to that effect. [00:17:07] Speaker 01: And in fact, the AJ considered the one instance where Ms. [00:17:10] Speaker 01: Holcomb came across someone's belongings and found that she did so accidentally while looking for training papers and only looked at them to the degree necessary. [00:17:19] Speaker 01: to determine that they were not what she was looking for and how they should be removed. [00:17:24] Speaker 01: Also, the assertion that ATC0 events were a common occurrence is not supported by anything that I'm aware of in the record. [00:17:31] Speaker 01: So it's not merely a nitpicky issue of citation. [00:17:34] Speaker 01: It's the fact that some of these things that are claimed are simply inaccurate. [00:17:38] Speaker 01: Are there any other questions that I can answer for you as the MSPB? [00:17:44] Speaker 05: No. [00:17:44] Speaker 05: Any questions? [00:17:45] Speaker 05: Any more questions? [00:17:48] Speaker 05: Thank you. [00:17:59] Speaker 05: Mr. Yale. [00:18:04] Speaker 04: May it please the court. [00:18:05] Speaker 04: I guess one point we would like to address would be the OIG investigation. [00:18:13] Speaker 04: You know, I think the board [00:18:15] Speaker 04: specifically address this. [00:18:16] Speaker 04: And I think a point that should be brought up is a statement on Appendix Page 28 that given the information available for the FAA at that time, I mean, it really would have been negligence if the security individuals were provided information about this work stoppage and it wasn't actually investigated. [00:18:37] Speaker 04: I mean, this is clearly a serious matter. [00:18:40] Speaker 04: We have a situation where this facility planes are having to land, you know, basically without air traffic control, you know, guidance, land at their own risk. [00:18:54] Speaker 04: And so we really think that that was, you know, the most serious allegation that was made there. [00:19:01] Speaker 04: And the board addressed, [00:19:03] Speaker 04: addressed that. [00:19:03] Speaker 04: It addressed the timing. [00:19:05] Speaker 04: It addressed how the interviews were conducted. [00:19:08] Speaker 04: And we really think that substantial evidence certainly supports that. [00:19:13] Speaker 04: We think that's sort of a theme that's throughout a petitioner's brief about [00:19:21] Speaker 04: Allegations that were raised that were purportedly not addressed by the board and they actually were And so we think that certainly substantial evidence Supports the board's determinations, and if there are any questions certainly [00:19:38] Speaker 04: here to answer those, but otherwise we would request that the court affirm the judgment of the board. [00:19:45] Speaker 02: A number of the ATCs filed EEO complaints. [00:19:50] Speaker 02: Do you know the status of those? [00:19:55] Speaker 04: We don't. [00:19:56] Speaker 04: I don't. [00:19:56] Speaker 04: I think there was, with regards to one of them in the record, there was [00:20:03] Speaker 04: evidence presented about a settlement that was made, but with regards to the other ones, I mean, there was nothing other than the fact that those were made by a number of air traffic controllers. [00:20:17] Speaker 04: There was nothing in the record as to the end result of those. [00:20:21] Speaker 04: And I don't have sort of independent knowledge of whether any of those were sustained. [00:20:29] Speaker 05: Neither of you seems to know or to be [00:20:33] Speaker 05: able to report what seems to be going to the heart of the question of whether or not the resignation was justified? [00:20:45] Speaker 04: Well, I think we would respectfully disagree with that. [00:20:49] Speaker 04: I mean, we have a situation where we had a three-day hearing, 12 witnesses were [00:20:54] Speaker 04: testified We have numerous allegations of complaints EEO complaints various complaints Just to management the board did a pretty exhaust before us for decision and [00:21:11] Speaker 04: Well, I mean, those with regards to the, as the board judge put it, with regards to, for example, the allegations that in the Swanson investigation that management was asking improper questions. [00:21:27] Speaker 04: Those issues were addressed by the board in exhaustive detail. [00:21:32] Speaker 04: I mean, there were allegations that inappropriate questions were asked. [00:21:36] Speaker 04: And the board went through and determined, asked to sort of the proprietary [00:21:41] Speaker 04: propriety of that investigation that Mr. Winterton didn't prove by a preponderance of the evidence that there is any wrongdoing here. [00:21:50] Speaker 04: And that's sort of, I mean, I think we have to keep in mind the burden of proof here. [00:21:56] Speaker 04: You know, there is an initial burden of proof with regards to whether or not a hearing would be granted, and that's based on allegations in an involuntary retirement case. [00:22:06] Speaker 04: The board judge found that that was met, and so there was a hearing. [00:22:10] Speaker 04: I mean, there was plenty of opportunity in this three-day hearing with all of these witnesses, and also the opportunity to conduct discovery as to [00:22:20] Speaker 04: a determination of, for example, the end outcome of some of these investigations. [00:22:27] Speaker 04: But we think that the board judge certainly addressed these in detail. [00:22:32] Speaker 04: The propriety of the OIG investigation, for example, we specifically addressed. [00:22:39] Speaker 05: Any more questions? [00:22:41] Speaker 05: I don't have more questions for Mr. Yeo. [00:22:43] Speaker 05: Thank you. [00:22:43] Speaker 05: Thank you, Mr. Yeo. [00:22:48] Speaker 05: Mr. Islum. [00:22:55] Speaker 00: Can be brief a few things I just wanted to say that there's this testimony or information that relied upon by the Law judge and it is on page appendix page 29 and [00:23:09] Speaker 00: The clear thing is that it's a talk about the ash referring to OIG. [00:23:15] Speaker 00: But there is no documentation provided. [00:23:17] Speaker 00: There is no information or testimony provided that when that was provided, how that was provided. [00:23:22] Speaker 00: It's just Mr. DiBernardo recounting that's what he would cause. [00:23:25] Speaker 00: Secondly is Ms. [00:23:27] Speaker 00: Holcomb signed her affidavit on the exact date the first signing her affidavit was on August 1, 2016. [00:23:37] Speaker 00: That's the date that she signed her administrative oath testifying under the AASH investigation. [00:23:42] Speaker 00: Well, the AASH investigation, well, the OIG investigation was notified to all of the, to the department in June of 2016. [00:23:50] Speaker 00: So the question here is, what was going on? [00:23:53] Speaker 00: And that's the problem that we have to look at. [00:23:55] Speaker 00: We have to look at totality of the circumstances to look at how Mr. Winterton and other air traffic, there were about three resonations after the OIG investigation. [00:24:04] Speaker 00: based upon the threat of criminal action. [00:24:07] Speaker 00: So the reality is, and then Mr. Winterton had a health problem regarding his diabetes and high blood pressure, which succumbed him to essentially have to take lorazepam, which was something that revoked his medical clearance. [00:24:19] Speaker 00: So you have all of these things going on. [00:24:21] Speaker 00: And when we look at what's improper, we have to look at the fact that the air traffic controllers [00:24:25] Speaker 00: letter of April 7th, there was never not one air traffic controller other than this Carter interviewed regarding their complaints. [00:24:33] Speaker 00: Mr. Winterton gets noticed in August that he's about to go in front of a criminal investigation. [00:24:38] Speaker 00: He's already under this high blood pressure. [00:24:40] Speaker 00: He already has a diabetes. [00:24:42] Speaker 00: He's taken Lorenzo plan for anxiety and he puts in his resignation four days before he's scheduled to go do the interview. [00:24:48] Speaker 00: So this is not a situation where he, he played this out or he thought this out and it was premeditated. [00:24:54] Speaker 00: If you look at the eight months, starting from September, a 15-year employee, more than 15, I don't know the exact number, so I would say 15-plus years, he starts in September. [00:25:03] Speaker 00: He complains. [00:25:04] Speaker 00: He complains. [00:25:05] Speaker 00: Regarding the one you asked about the EEO complaints, actually I'm representing one of the EEO complaints. [00:25:11] Speaker 00: Now we are scheduled for it in front of the Ministry, the law judge. [00:25:14] Speaker 00: regarding that action. [00:25:15] Speaker 00: Another person, the person who was terminated in March of 2019, there was a settlement and he was brought back. [00:25:21] Speaker 00: So Mr. Winterton is seeing all of this. [00:25:23] Speaker 00: He's a union representative negotiating or trying to work with management. [00:25:26] Speaker 00: He was actually removed in that capacity because of these complaints. [00:25:31] Speaker 00: And then now he gets a criminal investigation based on information that was presented to [00:25:36] Speaker 00: the FAA in April of 2016, then their allegation or their story is that in June it was disclosed. [00:25:45] Speaker 00: And I just want to make this last point. [00:25:47] Speaker 00: If we're talking about the disclosure in June, I do agree that independent of any [00:25:55] Speaker 00: could have had a reason to investigate this matter. [00:25:59] Speaker 00: But if ASH is under the FAA, under the same department, then they were under the same instruction not to investigate the work stoppage. [00:26:06] Speaker 00: And if they were there under that instruction, there's no way that this is new information to them. [00:26:11] Speaker 00: There's no way that this information is now justifying an OIG investigation. [00:26:15] Speaker 00: That's my only point, not the time delay. [00:26:18] Speaker 00: But the point is that that's what the basis is. [00:26:19] Speaker 00: And that's where I think the administrative law just missed significantly. [00:26:22] Speaker 00: Because she realized, just looking at the time delay, if you look at her statement, there's no way in there she says, she explains why someone who knew something in April was told to come out and investigate and not look at it, finds out about the same thing in June, and then looks at it and refers it out. [00:26:39] Speaker 00: That's not addressed at all. [00:26:41] Speaker 00: And that is an error of law. [00:26:43] Speaker 00: Because if that's true that this was not, they were told not to do it, and they still did it anyway, then that would be coercion, and that would be an improper action. [00:26:57] Speaker 05: Thank you. [00:27:01] Speaker 05: Thank you all. [00:27:02] Speaker 05: The case is taken under submission.