[00:00:00] Speaker 04:
Good morning, ladies and gentlemen.

[00:00:06] Speaker 04:
Our next case is Sean Higgins versus the Department of Veterans Affairs, 2018-23-52, Mr. Whitty.

[00:00:23] Speaker 01:
May it please the court, I'm John Witte with Government Accountability Project for the petitioner Sean Higgins, a hero dedicated to improving healthcare for America's veterans, one of the most important whistleblowers in the VA system.

[00:00:39] Speaker 01:
And at great personal cost, he's including suffering crippling and obvious PTSD, he has brought to light numerous breakdowns in healthcare at the VA.

[00:00:52] Speaker 01:
What is at issue here is the agency caused PTSD as a mitigating factor.

[00:01:00] Speaker 01:
The AJ ignored this court's Malloy precedent and provided no analysis of the extensive medical evidence of PTSD.

[00:01:11] Speaker 02:
Can I ask you a question?

[00:01:14] Speaker 02:
The AJ did say it made a fact finding that there was PTSD.

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I believe may have even said that it was caused by these circumstances in the workplace.

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And then it says in mitigation, I'm looking at page 825, and there's a sentence to the effect of identifying what the mitigation issues were.

[00:01:36] Speaker 02:
specifically noted the appellant's lengthy service, his PTSD, his perception of being retaliated against for whistleblowing, and his fully successful performance ratings.

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However, these mitigating factors cannot overcome the extreme seriousness of the charges he sustained.

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Why isn't that, along with the following paragraph, not enough?

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to show that perhaps it could have just been stated in a lot more detail and a lot more extensively.

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But why isn't that enough to show that in this case,

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the board actually considered the PTSD, but determined that the seriousness of some of the remarks made outweighed the PTSD and the other mitigating factors.

[00:02:30] Speaker 02:
I mean, I don't think there's any case law that says in circumstances where there's a mental illness, that's it.

[00:02:36] Speaker 02:
You can't consider other factors.

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They're still, it just has to be considered and it can be weighed.

[00:02:43] Speaker 01:
Judge Stoll, the AJ here acknowledged PTSD.

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And then there was no subsequent analysis or consideration of what was the likely, how big of a factor was PTSD?

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What was the relationship between his PTSD and the manifest conduct?

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And then how does the PTSD diagnosis fit in as a mitigating factor?

[00:03:09] Speaker 01:
All of that analysis was missing.

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The only thing

[00:03:12] Speaker 01:
The AJ alluded to about PTSD was he simply acknowledged that Mr. Higgins has PTSD.

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And so that is... He said it was a mitigating factor.

[00:03:23] Speaker 01:
It's included in a laundry list of mitigating factor with no further analysis.

[00:03:28] Speaker 01:
Yes, Judge Stoll.

[00:03:29] Speaker 02:
What more do you think should have been done?

[00:03:32] Speaker 02:
I mean, specifically, would it have been enough had there been a discussion of how difficult it was for Mr. Higgins to maintain his conduct or to say that, in fact, I conclude that the conduct was brought about by the PTSD, but nonetheless, given the need for safety in the workplace, I find that it's outweighed.

[00:03:54] Speaker 02:
What more would have had to have been done here?

[00:03:56] Speaker 01:
I think the judge told the AJ should have addressed the medical evidence of the PTSD to talk about its severity and perhaps to talk more about its source.

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And then more importantly, connect the PTSD to the conduct and to assess the likelihood, maybe make a finding of whether the PTSD in any way caused that conduct.

[00:04:21] Speaker 04:
But whatever the cause of the conduct, the conduct is relevant to job performance.

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And he wasn't performing the job properly because of his conduct.

[00:04:33] Speaker 01:
His conduct, Judge Lowry, was impacted dramatically by the... We heard testimony from Dr. Ballantyne about how the PTSD was caused by his working at the VA and his fear of reprisal from the management and his distrust of other employees.

[00:04:56] Speaker 01:
And that caused PTSD and then

[00:05:01] Speaker 01:
you would imagine that that would cause you to be a less than stellar worker, and then it would also prompt maybe an A.J.

[00:05:09] Speaker 01:
to ask, or actually the leadership of the hospital to ask, what can we do here to make this employee a better employee?

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What responsibility do we have?

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What argument was made below?

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I didn't see a lot of evidence in the record before me about any sort of showing that was made that there's some alternative available to removal that would both

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It's something of a lesser penalty that would satisfy also the need to keep the other employees at the VA safe, feeling safe.

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And so I didn't see any evidence, for example, that he could maintain his job and continue to do his job while working from home or anything like that.

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I didn't see that kind of finding.

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Was something like that made?

[00:06:04] Speaker 01:
Not, no Judge Stoll, and I think what I'm, if I hear your question correctly, what I'm thinking is the agency made no effort to find out the source of his problem or ask him the source of his problem.

[00:06:18] Speaker 01:
He was never interviewed about these incidents.

[00:06:21] Speaker 01:
He was never questioned.

[00:06:23] Speaker 01:
like what's the what is your state right now why are why are you acting like this they never asked what they could do to help him at all like for instance an employee assistance program or even in the worst case scenario a psychiatric examination there was never any effort to help him be a good employee and there was he did have judge stole he did have a request

[00:06:48] Speaker 01:
for a worker's comp disability, which actually got contravened by the agency, and that's not in the record here on appeal.

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He also had a, the AJ alludes to him, he had put in for a disability retirement, and after much

[00:07:06] Speaker 01:
Much going around, he did eventually get that, but there was never a referral to employee assistance.

[00:07:13] Speaker 01:
There was never a questioning of him about what can management do to support this man who's obviously in this amazing amount of distress.

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And of course, it was masking what the source of the distress was at the same time.

[00:07:27] Speaker 03:
Was there testimony from Dr. Ballentine or otherwise about whether, I'm not quite sure how to put this, whether the PTSD was moving in a favorable direction so that past conduct that might have been attributable to it might not be expected to be repeated in the future?

[00:07:52] Speaker 01:
Thank you for that question, Judge Taranto.

[00:07:55] Speaker 01:
As a matter of fact, PTSD, one of the advanced therapies, is EMDR.

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But you have to get the patient stable to some extent.

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And she did testify.

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that she wanted to move on to EMDR to address his PTSD.

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But she never could, because every time he went back to the hospital, he would get re-triggered.

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And he would ratchet up again.

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And so she didn't get to that point.

[00:08:23] Speaker 01:
The other thing that she described it as in the testimony, Your Honor, was she testified that it was

[00:08:29] Speaker 01:
static or stable in that it wasn't getting better, and that was the illusion she was making when she testified in that way.

[00:08:38] Speaker 01:
There was room.

[00:08:41] Speaker 01:
She wanted to make improvements with him, and she had made improvements with him, but he kept on getting re-triggered.

[00:08:54] Speaker 01:
The symptoms that Dr. Ballentine testified to about PTSD include hypervigilance and re-experiencing the trauma.

[00:09:03] Speaker 01:
Those are PTSD things and irritability.

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And she testified directly about how that fits into his conduct.

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For instance, when he asked that he wanted to be addressed by his first name,

[00:09:16] Speaker 01:
That would have been a situation, perhaps, a symptom of hypervigilance.

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Or when he asked rhetorically, what do I have to do to get management's attention here?

[00:09:25] Speaker 01:
That might have been a re-experiencing of the trauma and feeling endangered, which Mr. Higgins alluded to in the testimony himself, that it was happening to him right there at the trial as he was testifying.

[00:09:39] Speaker 01:
So the AJ ignored all of that, that discussion.

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And then he did no analysis of the PTSD.

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And he simply adopted Mr. Dunning's, he parroted Mr. Dunning's aphorism that Mr. Higgins is responsible for the words he spoke.

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And that gives a little indication of there's no discretion anymore.

[00:10:02] Speaker 01:
There's no mitigation possible if you're responsible for the words you spoke.

[00:10:06] Speaker 01:
And this was despite hearing the testimony.

[00:10:09] Speaker 01:
I'll let the court know that Ms.

[00:10:12] Speaker 01:
Grimes also described Mr. Higgins as being in a psychiatric episode during the EEO office affair.

[00:10:20] Speaker 01:
And this was despite Mr. Reisman in the Douglas Factors putting in the effect of the symptoms as well, say listing ongoing work tension, conflict with management, perceived mistrust and anger with senior leadership.

[00:10:34] Speaker 01:
So there were all of these flags

[00:10:36] Speaker 01:
And no allusion to it.

[00:10:38] Speaker 01:
And this is contrary to this court's rulings in Malloy and Ball.

[00:10:43] Speaker 01:
This court chastised the AJ in Malloy for only having reviewed the volumous medical evidence, which we believe we have here.

[00:10:55] Speaker 01:
And then in Ball, this court chastised the board's ruling as being devoid of any substantive discussion of the medical evidence.

[00:11:05] Speaker 02:
Can I move you on just one quick question before you go into your rebuttal time?

[00:11:11] Speaker 02:
You also argued that the board erred in excluding the testimony of Mr. Reisman.

[00:11:17] Speaker 02:
I was looking at the proffer testimony of Reisman, which is on pages 20 and 21 of your blue brief.

[00:11:26] Speaker 02:
And I don't see something expressed there saying that he was going to talk about institutional motive.

[00:11:33] Speaker 02:
Can you identify for me where you think that is in this paragraph?

[00:11:38] Speaker 01:
Well, thank you, Judge Stoll.

[00:11:40] Speaker 01:
The thing where we have in the proffer there is the connection to the four employees at the bottom, Ambrose, Bomber, Good, and Fan, who were all, and we

[00:11:53] Speaker 01:
say in the proffer there that he knew that all four of them had filed adverse reports against Mr. Higgins prior, and yet he used those four to influence and shape his removal decision.

[00:12:06] Speaker 01:
And then at the very top of that section is where he talks about, where we made an allusion to Ms.

[00:12:11] Speaker 01:
Depperman, his boss, the

[00:12:14] Speaker 01:
deputy director of the facility at the time.

[00:12:18] Speaker 01:
And her influence on him is laid out there as she had talked to him about the problems he had with the whole organization.

[00:12:29] Speaker 01:
And later on, we proffered our exhibit, Triple X, which is also in the appendix there at page 88, where she pressured him

[00:12:41] Speaker 01:
to falsify miss depperman the deputy director his boss to falsify a report of contact because it was going to make her and the director mister belmont happy they had lost trust in him if he didn't change this report of contact to alleged that mister higgins had sworn uh... had to use profanity in this in this interaction and and that attached triple acts and that the wreathsman

[00:13:09] Speaker 01:
report of contact where he then and attach that you know assemble that along with his proper testimony and the picture has been built there of of the institutional motive to retaliate council you're well into your rebuttal time you can continue i'll stay stay here the second issue is the a.j.'

[00:13:32] Speaker 01:
's restriction of the evidence of motive

[00:13:46] Speaker 00:
May it please the court?

[00:13:48] Speaker 00:
I'll first address Mr. Higgins' claim that the agency's penalty of removal was unreasonable.

[00:13:53] Speaker 00:
The only requirement of an administrative judge when it's reviewing the agency's penalty of removal is to give weight and consideration to all of the Douglas factors.

[00:14:03] Speaker 00:
So Mr. Higgins takes concern with factor number 11, the mitigating circumstances, and whether the administrative judge considered the PTSD.

[00:14:12] Speaker 00:
But the administrative judge gave

[00:14:14] Speaker 00:
The PTSD weight, he said, on balance.

[00:14:16] Speaker 00:
I'm balancing the egregious and profane conduct against the PTSD and other mitigating factors.

[00:14:22] Speaker 02:
Does he actually say that on balance?

[00:14:25] Speaker 02:
I'm weighing this against that.

[00:14:27] Speaker 00:
I'll point you to, Your Honor, Appendix 25, which you had already referenced, as well as Appendix 27.

[00:14:34] Speaker 00:
And he is crediting Mr. Dunning, the deciding official's testimony,

[00:14:39] Speaker 00:
Mr. Dunning's testimony, you can see it on pages, I believe, 139 to 141, 241 to 243 of the appendix.

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And he did that balancing consideration, and then the administrative judge found him credible and said, I agree with Mr. Dunning.

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And so, under Malloy, the only thing that's required is weight and consideration.

[00:15:01] Speaker 00:
There's no requirement, as Mr. Higgins argues, the administrative judge needs to do this extensive analysis of the medical conditions.

[00:15:09] Speaker 00:
And the distinction between Malloy and the bowel case that Mr. Higgins cites is that in both of those cases,

[00:15:16] Speaker 00:
There was a substantiated mental impairment.

[00:15:19] Speaker 00:
It happened to be depression in both of those cases.

[00:15:22] Speaker 00:
And the administrative judge did not consider the mental impairment as a mitigating factor in either of those cases.

[00:15:29] Speaker 00:
Exactly.

[00:15:29] Speaker 00:
It gave it no weight at all and said, I'm not considering this.

[00:15:33] Speaker 00:
I don't find it credible.

[00:15:34] Speaker 00:
In both of those cases, this court then came and said, when there's a mental impairment that's substantiated, you have to give it weight and consideration.

[00:15:44] Speaker 00:
It then went on to say that if you're not going to, then you need to provide some analysis as to why you think the mental impairment shouldn't be considered mitigating.

[00:15:53] Speaker 00:
And that's different from here because the administrative judge here did credit Mr. Higgins' mental impairment, his PTSD, as a mitigating factor.

[00:16:03] Speaker 00:
And when he waived them, he said that he was left with a firm conviction that because of Mr. Higgins' egregiously disruptive and profane conduct on balance,

[00:16:14] Speaker 00:
or when he was weighing the two, he thought that the agency's penalty of removal was within the bounds of reason.

[00:16:21] Speaker 00:
And that's exactly what's required under Douglas is this balancing factor.

[00:16:26] Speaker 00:
And so Mr. Higgins' next argument goes to... Can I just ask this?

[00:16:31] Speaker 03:
It seems to me that the PTSD, at least in the abstract, could play two different roles here.

[00:16:38] Speaker 03:
One is a role in assessing

[00:16:42] Speaker 03:
the word blameworthiness or something comes to mind, degree of responsibility, I think that was a word.

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And I think your position is Mr. Dunning and the A.J.

[00:16:53] Speaker 03:
considered that and decided even if he wasn't as blameworthy as somebody without that,

[00:16:59] Speaker 03:
condition the conduct nevertheless is something we don't need to live with.

[00:17:04] Speaker 03:
Another possibility which I think I asked your opposing counsel about is that perhaps there could be evidence that the PTSD is under control moving in a good direction and so for a forward-looking question of whether we can expect this in the future the evidence might suggest

[00:17:26] Speaker 03:
I don't mean in the abstract, evidence on the subject might suggest that removal is an unnecessary penalty.

[00:17:35] Speaker 03:
But I think I heard the answer to my question that the latter sort of evidence is not in this case.

[00:17:43] Speaker 03:
And indeed, the medical evidence or psychological evidence is that things were not looking better.

[00:17:51] Speaker 00:
That's correct, Your Honor.

[00:17:52] Speaker 00:
And what is in the record is not so much as Mr. Higgins was improving or his conduct in the workplace was getting better.

[00:18:00] Speaker 00:
What the agency considered, and the administrative judge mentioned, was that Mr. Higgins has had an extensive history of misconduct.

[00:18:08] Speaker 00:
The agency considered two prior suspensions that he had, and then there was a suspension in this case, and then the removal was based on three separate incidents.

[00:18:18] Speaker 02:
So are you suggesting that those

[00:18:20] Speaker 02:
prior incidents were also part of the cause by PTSD.

[00:18:24] Speaker 02:
I was just wondering how this tied into the PTSD discussion.

[00:18:28] Speaker 00:
That was not part of the record, Your Honor, whether those prior incidents, and they were years before, but the agency did consider the history of misconduct when it was doing the balancing under the Douglas factors, and the administrative judge found that that history of misconduct was relevant.

[00:18:43] Speaker 00:
But what about

[00:18:44] Speaker 02:
The question about, are you aware of anything in the record that would show that the PTSD was progressing in a positive direction?

[00:18:50] Speaker 02:
In other words, that he was receiving treatment and getting better, or is there evidence that it was not getting better?

[00:18:56] Speaker 02:
Is there anything in the record to that effect?

[00:18:58] Speaker 00:
No, Your Honor.

[00:18:59] Speaker 00:
Dr. Ballantyne did testify, Mr. Higgins is doctor, and she did not testify as to positive work towards the PTSD or any significance as far as whether it was getting better or being remediated in any way.

[00:19:13] Speaker 00:
Rather, she did testify that the PTSD may have or could have caused Mr. Higgins to have these outbursts.

[00:19:20] Speaker 00:
But again, that just goes to Douglas Factor Number 11, and that's part of the weighing and balancing consideration, and the administrative judge did take that into consideration, which is all that's required.

[00:19:30] Speaker 02:
Did Mr. Higgins at any point argue that one alternative to removal here would be

[00:19:37] Speaker 02:
you know, changing the workplace conditions for him, for example, perhaps his position would have allowed him to work from home or something to this effect, where he could have performed his duties, but at the same time, you know, have been able to not be triggered and not have these workplace problems and be able to seek treatment.

[00:19:57] Speaker 00:
There's nothing in the record to that effect, Your Honor.

[00:19:59] Speaker 00:
There was some testimony about a previous request of Mr. Higgins to telework on a permanent basis, but that wasn't put forth to agency as part of this removal procedure.

[00:20:09] Speaker 00:
Mr. Higgins was accommodated in some reference in the A.J.'

[00:20:13] Speaker 03:
's opinion about that.

[00:20:14] Speaker 00:
Correct, and yeah, he did request that, and Dr. Valentine did testify to that.

[00:20:20] Speaker 00:
He was accommodated by the agency, though.

[00:20:22] Speaker 00:
He had a separate workspace, and he didn't have interaction to the level that he used to.

[00:20:28] Speaker 00:
So the agency did take measures to accommodate.

[00:20:30] Speaker 00:
But what it comes down to for this court is whether the administrative judge gave consideration and weight to all of the Douglas Factors on pages 25 through 27.

[00:20:39] Speaker 00:
The administrative judge did just that.

[00:20:42] Speaker 00:
So I'll move now to Mr. Higgins' next argument that the administrative judge abused his discretion in his exclusion of certain witnesses and in his consideration of the evidence.

[00:20:53] Speaker 00:
And Mr. Higgins takes concern with car factor two under his whistleblower retaliation claim, affirmative defense, excuse me, and says that the administrative judge didn't properly consider motive to retaliate.

[00:21:07] Speaker 00:
Mr. Higgins' claims as it goes to institutional motive to retaliate are really of no concern for this court because the administrative judge did credit a possible motive to retaliate.

[00:21:19] Speaker 00:
So he did note that there might be some institutional motive to retaliate given Mr. Higgins'

[00:21:25] Speaker 00:
long history of his whistle-blowing.

[00:21:28] Speaker 00:
So the administrative judge considered that.

[00:21:30] Speaker 00:
As it relates to personal motive to retaliate, the administrative judge heard no testimony.

[00:21:36] Speaker 00:
There's nothing cited by Mr. Higgins in his appellate brief

[00:21:40] Speaker 00:
any testimony suggesting that any of the witnesses had any personal motive to retaliate.

[00:21:46] Speaker 02:
What about his argument that had Mr. Reisman been able to testify, he would have talked about how he received input from other people who might have had personal motive to retaliate.

[00:21:57] Speaker 00:
Well, I think, Your Honor, that goes to your question that you posed earlier, which is that it has to be in his proffer initially.

[00:22:05] Speaker 00:
And so Mr. Higgins's claim is that Mr. Reisman had this motive to retaliate from someone else, and that carried through to the deciding official.

[00:22:15] Speaker 00:
His proffer says that he relied on reports from a number of witnesses.

[00:22:19] Speaker 00:
He didn't seek to call any of those witnesses at the trial.

[00:22:23] Speaker 00:
those reports that he relied on were in the record.

[00:22:27] Speaker 00:
And so presumably any motive to retaliate that would have come from those reports could have been addressed by the witnesses who made the reports, had he chose to call them, or when they were testified to at the hearing, Mr. Higgins could have asked those questions.

[00:22:41] Speaker 02:
And now... What was the reason that the A.J.

[00:22:44] Speaker 02:
gave for excluding Mr. Riesman's testimony?

[00:22:47] Speaker 00:
Redundant or irrelevant.

[00:22:49] Speaker 00:
That's what he said for the list of witnesses who he excluded.

[00:22:52] Speaker 00:
What do you think was redundant, though?

[00:22:53] Speaker 00:
Well, Your Honor, Mr. Reisman was merely going to testify.

[00:22:57] Speaker 00:
We can look, I believe it's on page 77 of the administrative record.

[00:23:02] Speaker 00:
He was going to testify to a number of things, including the problems that Mr. Higgins had with the whole organization.

[00:23:07] Speaker 00:
There were a number of witnesses who talked about those problems.

[00:23:12] Speaker 00:
The administrative judge admitted that or spoke about Mr. Higgins' long history of whistleblowing and said, I'm crediting that.

[00:23:20] Speaker 00:
You don't need to put on a bunch of evidence about that.

[00:23:23] Speaker 00:
These reports, the agency called these witnesses to actually testify.

[00:23:30] Speaker 00:
for Mr. Reisman to testify about the reports that the actual witnesses were testifying to seems redundant.

[00:23:37] Speaker 00:
And then he said that he can testify about Mr. Poindexter using profane language.

[00:23:43] Speaker 00:
The administrative judge noted that in his order and said, I realize Mr. Poindexter also might have used profane language, but that doesn't excuse Mr. Higgins' conduct.

[00:23:51] Speaker 04:
Did Mr. Higgins call 11 witnesses?

[00:23:55] Speaker 00:
Mr. Higgins called, I believe, 15 witnesses and was permitted to call at the hearing 11.

[00:24:02] Speaker 00:
Correct.

[00:24:03] Speaker 00:
And so he was able to call a number of these witnesses.

[00:24:07] Speaker 00:
And what's important to note for Mr. Reisman here is even Mr. Higgins states in his brief that Mr. Reisman could credibly deny any animus towards Mr. Higgins.

[00:24:17] Speaker 02:
And so... The argument is that he would say that he received reports.

[00:24:22] Speaker 02:
Correct.

[00:24:22] Speaker 02:
The others who gave him input had a personal

[00:24:24] Speaker 00:
So it's a cat's paw theory in that we're imputing this motive to retaliate, but contrary to the typical cat's paw theory, which is that one person has a motive to retaliate and influenced the decision maker to make a certain action.

[00:24:38] Speaker 00:
Mr. Higgins' theory is there were a number of people with motive to retaliate who then influenced the proposing official, who then influenced the deciding official.

[00:24:48] Speaker 00:
And this cat's paw theory is approximate cause analysis.

[00:24:52] Speaker 00:
And Mr. Higgins is not connected

[00:24:54] Speaker 00:
Ms.

[00:24:54] Speaker 00:
Depperman, Mr. Ambrose, all of these people who wrote these reports to Mr. Reisman, nor has he connected Mr. Reisman to Mr. Dunning, the actual deciding official.

[00:25:03] Speaker 00:
And what's also important to note in this chain is Mr. Dunning, who was the deciding official, undertook his own analysis.

[00:25:11] Speaker 00:
He heard from Mr. Higgins first before he considered

[00:25:14] Speaker 00:
any of Mr. Reisman's Douglas Factor analysis.

[00:25:17] Speaker 00:
He heard from Mr. Higgins, then he looked through the evidence file, and he also considered Mr. Reisman's Douglas Factor analysis.

[00:25:26] Speaker 00:
So he did a holistic consideration, an independent consideration, and ultimately determined that based on the conduct that was largely admitted by Mr. Higgins,

[00:25:37] Speaker 02:
all of that conduct when you're referring to that are you referring to the his analysis at page j a one one four that's the one paragraph where he explained his reasoning for the yes your honor but he also has further testimony that's in the record explaining the what he went through he said that he

[00:25:57] Speaker 00:
talked with Mr. Higgins and allowed him an oral reply.

[00:26:00] Speaker 00:
He went into the decision with an open mind so he didn't hear from any of the agency witnesses first.

[00:26:06] Speaker 00:
He first heard from Mr. Higgins.

[00:26:08] Speaker 00:
He said he considered a comprehensive evidence packet that wasn't put together by Mr. Reisman and then he considered what Your Honor just cited.

[00:26:15] Speaker 00:
Mr. Reisman's Douglas Factor analysis.

[00:26:18] Speaker 00:
So Mr. Dunning did undertake his own analysis here.

[00:26:21] Speaker 00:
And even if all of these other witnesses, two times removed, had some motive to retaliate, they were never elicited at the hearing.

[00:26:30] Speaker 00:
And Mr. Higgins has not shown that that motive to retaliate can be imputed to the proposing official and then imputed to the deciding official.

[00:26:40] Speaker 00:
And in fact, Mr. Higgins has cited no authority, no cat's paw cases,

[00:26:45] Speaker 00:
where there has been this chain of imputing motive to retaliate.

[00:26:51] Speaker 00:
So if Your Honours have no further questions, we'll ask that the Court affirm the Administrative Judge's findings.

[00:26:57] Speaker 04:
Thank you.

[00:27:10] Speaker 01:
Your Honors, just a correction that Mr. Higgins did have all uniformly good performance reviews prior to the termination.

[00:27:18] Speaker 01:
He was a good employee.

[00:27:20] Speaker 01:
And Dr. Ballantyne did testify that he had the ability to improve.

[00:27:26] Speaker 01:
And in fact, in just the year that she'd been working with him, he had made improvements.

[00:27:30] Speaker 01:
It all fell off the wagon there towards the end of 2016.

[00:27:33] Speaker 02:
What pages are you citing to further contention that he was improved?

[00:27:40] Speaker 01:
Well, Dr. Ballantyne's letter on page 101, Judge Stoll, does say that at the very bottom, outside of therapy, Mr. Higgins has willingly used coping skills discussed in this session.

[00:27:55] Speaker 01:
That's one of the places where she alludes to that right there.

[00:28:00] Speaker 01:
going back to Judge Stoll's earlier question about telework, he had been offered telework and he could have done his job via telework as well.

[00:28:09] Speaker 01:
He had worked to get, there had been a discussion about telework.

[00:28:17] Speaker 01:
The person who could have testified about institutional retaliatory motive was Reisman.

[00:28:23] Speaker 01:
He was the one at the focal point of taking in all of these other witnesses' statements and synergizing it into the proposal for removal and the Douglas Factor analysis.

[00:28:34] Speaker 01:
So to call the other witnesses who would have likely denied any retaliatory animus.

[00:28:41] Speaker 01:
There's those in management who know to deny that.

[00:28:45] Speaker 01:
And then there's those others outside the system who will simply tell the truth about what was going on.

[00:28:50] Speaker 01:
And that was, in fact, what Mr. Reisman was prepared to do.

[00:28:54] Speaker 01:
And so to ask Mr. Ambrose or ask Goody or Bomber to testify about retaliatory animus, it was

[00:29:02] Speaker 01:
The person who could talk about it was Reisman, and he was excluded, and that was an abuse of discretion at that point right there.

[00:29:11] Speaker 01:
Mr. Dunning's removal file was tainted by the

[00:29:21] Speaker 01:
fraudulent order of protection that was in there, and also by all of the lengthy listing of the police reports that had been made against Mr. Higgins.

[00:29:30] Speaker 01:
So Mr. Dunning's mind was not clear when he reviewed the performance file.

[00:29:38] Speaker 01:
And so we ask that the case be remanded to reopen the record.

[00:29:41] Speaker 04:
Thank you.

[00:29:41] Speaker 04:
Mr. Whitty, we have your case.

[00:29:43] Speaker 04:
The case will be taken under advisement.