[00:00:01] Speaker 02:
Our next case is appeal number 21-2216, Ruder v. Commerce.

[00:00:11] Speaker 02:
Mr. Magri, whenever you're back, please proceed.

[00:00:20] Speaker 01:
I think this is a very important due process case, which was not

[00:00:27] Speaker 01:
fully appreciated by the district court or the administrative judge in his rulings.

[00:00:38] Speaker 01:
If one looks at the communications that preceded the ultimate proposal and the ultimate decision,

[00:00:51] Speaker 01:
One sees threats, veiled threats, in March communications to both Streltschek and Bernhardt, as well as an individual by the name of Paul Dorri Amos, who's their boss.

[00:01:10] Speaker 01:
He, in turn, sent with copies to them to very high.

[00:01:18] Speaker 02:
We are very familiar with the facts of this case.

[00:01:22] Speaker 02:
So one of the things that I was thinking about is our

[00:01:27] Speaker 02:
KSAR president does have some things that we are to consider in determining whether a communication is, in fact, an ex-party communication, right?

[00:01:36] Speaker 02:
One of them is whether it introduces cumulative or new information.

[00:01:41] Speaker 02:
Another one is whether it's likely to result in undue pressure.

[00:01:44] Speaker 02:
You started, you mentioned, the March 9, 2017 email from Dr. Bolden, I believe, is what you were referring to.

[00:01:54] Speaker 02:
Why is that not cumulative information?

[00:01:58] Speaker 01:
Can I, I know mine is at 1324, and I thought I'd refer to it.

[00:02:03] Speaker 02:
You will absolutely have your rebuttal.

[00:02:05] Speaker 02:
What will happen is the light will turn yellow when you go into your rebuttal time, and I'll try to remind you of that.

[00:02:12] Speaker 01:
Thank you very much.

[00:02:17] Speaker 01:
Your question was?

[00:02:19] Speaker 02:
My question was, why isn't the March 9, 2017 email from Dr. Bolden to Mr. Strelchak

[00:02:28] Speaker 02:
merely cumulative to other information.

[00:02:31] Speaker 02:
For example, I think that she said something like, why are you not taking any action yet?

[00:02:37] Speaker 02:
And she doesn't say what particular action, but why hasn't this been resolved?

[00:02:41] Speaker 02:
I mean, I think that probably it was known since she was the proposing official that she, in fact, did think that something should be done in this case.

[00:02:50] Speaker 01:
So I don't know what's new information.

[00:02:52] Speaker 01:
She wasn't the proposing official.

[00:02:54] Speaker 04:
She initiated it.

[00:02:56] Speaker 04:
She did.

[00:02:58] Speaker 01:
She did that.

[00:02:59] Speaker 01:
But none of that was something that Mr. Reuter knew as to what was going on and what was going on in various stages.

[00:03:09] Speaker 01:
So none of the communications that occurred in 2017 or even earlier

[00:03:16] Speaker 01:
were things that Mr. Reuter knew.

[00:03:19] Speaker 01:
There's no way that Mr. Reuter could have said you shouldn't be acting on the basis of these communications.

[00:03:27] Speaker 04:
But what is the new and material evidence that was introduced into the deciding officials universe of cognition here by that email?

[00:03:41] Speaker 04:
What is it that more on his guilt or innocence

[00:03:46] Speaker 04:
that was contributed by that email.

[00:03:48] Speaker 01:
Well, I think Stone and Douglas want one to focus on whether or not undue pressure was put.

[00:03:56] Speaker 01:
And so that email puts undue pressure on the officials.

[00:04:03] Speaker 01:
And when one looks at the May 2nd communication.

[00:04:07] Speaker 03:
I think that's one factor.

[00:04:07] Speaker 03:
You're pointing out one of the factors.

[00:04:09] Speaker 03:
But what about addressing Judge Bryson's question in particular?

[00:04:12] Speaker 01:
Which one?

[00:04:13] Speaker 03:
The question that he just asked about what was the new and material information that was introduced.

[00:04:17] Speaker 01:
Well, I thought it answered that.

[00:04:20] Speaker 01:
All of the information here are things that Mr. Reuter had no idea about.

[00:04:26] Speaker 01:
Right.

[00:04:26] Speaker 04:
But that doesn't necessarily make it that information, new and material information, going to his culpability.

[00:04:34] Speaker 01:
But a threat has got to be new.

[00:04:37] Speaker 04:
That's a different issue.

[00:04:38] Speaker 04:
So you're saying that there was undue pressure.

[00:04:43] Speaker 04:
OK.

[00:04:43] Speaker 04:
But that's not the new and material evidence prong of ex parte communications, right?

[00:04:51] Speaker 01:
Well, I think that if the decision is going to be made on the basis of threats, it is.

[00:04:58] Speaker 01:
And in this case, you can see that that's exactly what happened.

[00:05:02] Speaker 01:
When you look at Dorie Ramos' communication to the agency officials above, the last group that he wanted to send that to was OSC.

[00:05:14] Speaker 01:
At that point, there was a pending proposal to terminate.

[00:05:20] Speaker 01:
After that point, the email comes where Mr. Bernhardt is talking about communication from Bolden, and he's afraid.

[00:05:32] Speaker 01:
He's afraid.

[00:05:32] Speaker 01:
He believes that she will not only file claims against them, but she will impair the OSC investigation.

[00:05:40] Speaker 01:
And he conveys that to the sighting official.

[00:05:44] Speaker 01:
Shortly thereafter, they withdraw

[00:05:49] Speaker 01:
the proposal, the first proposal, and then they institute a new proposal.

[00:05:57] Speaker 01:
So clearly, those emails had an effect on the entire process at that point.

[00:06:04] Speaker 01:
The new proposal supposedly only considers stuff from before.

[00:06:12] Speaker 01:
He made his October 8th

[00:06:18] Speaker 03:
uh... whistleblower disclosure i think you like the undue pressure one so let's talk a little bit about that so on that particular prong so to speak does the reporting structure have any effect in your opinion on whether or not something would constitute undue pressure because there's kind of a reporting structure here with the various people involved do you think like higher up on the ladder would be more pressure?

[00:06:45] Speaker 03:
I'm just trying to get a sense of your take

[00:06:47] Speaker 01:
Well I think it's more pressure when you actually have the boss sending it up the chain, sending it to OSC, and then you see the causation in terms of the withdrawal of the first proposal.

[00:07:06] Speaker 01:
And in that letter, the suggestion that

[00:07:10] Speaker 01:
if she may impair the OSC investigation, is remedied by the withdrawal of that.

[00:07:20] Speaker 02:
Just to make sure I understand, are you saying that the email sent by Dr. Bolden was sent to OSC?

[00:07:28] Speaker 02:
If you look at the... I'm looking at page 1635, which is the actual email.

[00:07:38] Speaker 01:
Take a look at 1635, the top email.

[00:07:44] Speaker 02:
John, I would like you... It's forwarded.

[00:07:48] Speaker 01:
It's where it's forwarded.

[00:07:50] Speaker 01:
John, I would like you, the agency, and the OSC to be aware of the message below.

[00:07:55] Speaker 01:
Now, in the one below, this is not the one where on May 2nd,

[00:08:06] Speaker 01:
Bernhard is saying, I am now afraid.

[00:08:11] Speaker 01:
It is her apparent belief or attempt to portray that I'm the villain in this piece.

[00:08:15] Speaker 04:
Where are you reading from?

[00:08:16] Speaker 01:
I'm reading from Appendix 1674.

[00:08:22] Speaker 01:
And he says, I'm the villain in this piece and that there's some risk further complaints from Steph will come.

[00:08:31] Speaker 01:
I'm concerned about the potential impact

[00:08:34] Speaker 01:
on pending OSC investigation.

[00:08:39] Speaker 01:
So here we have an admission of the undue pressure and then we have causation when they withdraw

[00:08:49] Speaker 01:
the current one, to take OSC out of the process.

[00:08:52] Speaker 01:
If that doesn't affect Mr. Reuters' rights at this point, it's hard to imagine what else could.

[00:09:01] Speaker 01:
He could have had OSC looking into his claim and seeing whether or not it was appropriately done.

[00:09:09] Speaker 01:
And instead, to avoid that,

[00:09:12] Speaker 02:
To make sure I understand, this is not connected to her March email, correct?

[00:09:17] Speaker 02:
I just want to make sure I understand that.

[00:09:19] Speaker 02:
Yes, well I believe it is.

[00:09:21] Speaker 02:
It's not expressedly or you're inferring that it is, but there isn't anything here that connects it.

[00:09:28] Speaker 01:
Well, it doesn't say in follow-up to that email.

[00:09:30] Speaker 01:
No.

[00:09:31] Speaker 01:
It doesn't say that.

[00:09:33] Speaker 02:
It says attached is her perf plan with progress review, right?

[00:09:36] Speaker 01:
Yes.

[00:09:37] Speaker 01:
OK.

[00:09:38] Speaker 01:
But in the context of this case, it's hard to view any of these things are unrelated.

[00:09:46] Speaker 01:
If you start right from the beginning, you can see a tie-in where he makes an OSCE complaint.

[00:09:56] Speaker 01:
And for the first time that there is actually a draft proposal,

[00:10:00] Speaker 01:
which is on November 3.

[00:10:03] Speaker 01:
That comes after there's a conversation between her and Bernhard where she's saying, I would like to propose his termination.

[00:10:15] Speaker 01:
But I'm afraid I won't have support of management.

[00:10:18] Speaker 01:
And Bernhard says, please do what you think is proper.

[00:10:22] Speaker 01:
I'll support you.

[00:10:24] Speaker 01:
I'm at yellow.

[00:10:27] Speaker 01:
everywhere, if you just track the communications throughout, you see reaction to the things that she's doing.

[00:10:37] Speaker 01:
And none of this is things that Ruder knows about or could address, and it's all affecting his rights.

[00:10:46] Speaker 01:
And that's the whole concept of Sullivan and Stone, the effect on the process.

[00:10:51] Speaker 02:
Some of our president talks about

[00:10:56] Speaker 02:
it might have been Stone or Sullivan, talked about how the ex parte communication was recommending particular penalty.

[00:11:05] Speaker 02:
Do you agree that none of these communications indicate a particular penalty?

[00:11:08] Speaker 01:
Oh, no.

[00:11:09] Speaker 01:
I don't agree to that.

[00:11:10] Speaker 01:
Because she was the one that recommended on November 3 of 2015 his termination for something that.

[00:11:21] Speaker 02:
But that was part of the record that he knew about.

[00:11:24] Speaker 01:
No, no, no.

[00:11:25] Speaker 01:
That was in a timeline that he didn't know about.

[00:11:28] Speaker 01:
That timeline also referred to a PIP that was under investigation, which he didn't know about.

[00:11:34] Speaker 02:
He didn't know that the recommendation had been removal?

[00:11:39] Speaker 01:
Not on that day.

[00:11:41] Speaker 01:
He didn't know about the removal thing until November of 2016, but he did not know about her recommendation for removal on November 3rd.

[00:11:54] Speaker 04:
Suppose that all of the documents that you contend should not have been kept from him.

[00:12:02] Speaker 04:
Suppose that all of those documents had been disclosed to him in the course of the removal proceedings.

[00:12:09] Speaker 04:
What would he have been able to do that would have helped his cause?

[00:12:15] Speaker 01:
Well, one of the things he would have been able to do is litigate the propriety

[00:12:21] Speaker 01:
of the claim that she is, her claim was, I am a victim of sexual harassment.

[00:12:33] Speaker 01:
To think that in this case, there was sexual harassment when that was not found by workforce management office.

[00:12:46] Speaker 01:
It was, it involves a

[00:12:50] Speaker 01:
momentary action that, of course, deserved punishment in the form that Workforce Management Office said.

[00:13:00] Speaker 01:
But this became sexual harassment.

[00:13:06] Speaker 01:
Sexual harassment, I do those cases.

[00:13:10] Speaker 01:
This is not one of them.

[00:13:18] Speaker 01:
Of course.

[00:13:19] Speaker 01:
But that is the charge.

[00:13:23] Speaker 01:
But that charge has been transferred into sexual harassment throughout this case.

[00:13:32] Speaker 01:
It shouldn't have been.

[00:13:35] Speaker 04:
But to go back to my question, which I don't know.

[00:13:39] Speaker 04:
got a complete answer to.

[00:13:40] Speaker 04:
I'm sorry.

[00:13:42] Speaker 04:
No, that's all right.

[00:13:43] Speaker 04:
I may not have made it clear.

[00:13:45] Speaker 04:
What I'm really struggling here to see is suppose he had been copied on every single one of these emails.

[00:13:54] Speaker 04:
A preposterous hypothesis, I suppose.

[00:13:56] Speaker 04:
But suppose that he'd gotten every one of these at the time they were sent.

[00:14:00] Speaker 04:
How would he have

[00:14:02] Speaker 04:
then what would he have been able to do that would have changed the outcome of this case?

[00:14:06] Speaker 01:
On one hand, he could have attempted to litigate what she was saying.

[00:14:11] Speaker 01:
But on the other hand, there may be nothing.

[00:14:14] Speaker 04:
What she was saying is, let's get on with the show.

[00:14:16] Speaker 04:
Let's move this along.

[00:14:17] Speaker 01:
No, that's not what she was saying.

[00:14:18] Speaker 04:
But that was certainly what she was saying in 1635.

[00:14:21] Speaker 01:
Well, she wanted the action to be taken, which at that point was removal.

[00:14:29] Speaker 01:
Right, okay.

[00:14:29] Speaker 04:
Well, suppose she said, you know, I'm very upset about this, I think he should be removed.

[00:14:34] Speaker 04:
And she copied him with it.

[00:14:37] Speaker 04:
How would that be a violation of his due process?

[00:14:40] Speaker 01:
Could he have litigated?

[00:14:42] Speaker 01:
the concerns or address the concerns of upper management or other management within the agency about how they would look if other claims were filed or if issues were created based on what you were saying.

[00:14:57] Speaker 01:
How could he address that?

[00:14:59] Speaker 01:
Why is that a consideration in an employee's case?

[00:15:03] Speaker 01:
Why can't an employee's case be decided on the basis of the facts?

[00:15:08] Speaker 02:
I want to ask you that.

[00:15:11] Speaker 02:
I went back and looked at the specifications at issue here, and none of them involve the treatment

[00:15:21] Speaker 02:
of Dr. Bolden.

[00:15:25] Speaker 02:
Instead, they involve the treatment of other females.

[00:15:30] Speaker 02:
at an after-hours party, right?

[00:15:32] Speaker 02:
I mean, that was the claim and specification that was at issue here.

[00:15:37] Speaker 02:
So I'm a little confused about your answer that this was decided on the basis.

[00:15:45] Speaker 02:
I mean, the whole opinion and everything written is decided on the basis of specifications one and two, right?

[00:15:52] Speaker 01:
Well, the opinion is, but without proper consideration of the due process claims.

[00:15:58] Speaker 02:
Why would there have to be litigation with respect to Dr. Bolden's email?

[00:16:03] Speaker 01:
Because her emails are saying, you must remove him.

[00:16:10] Speaker 01:
Not because of the facts, but because I'm upset.

[00:16:17] Speaker 01:
They're upset.

[00:16:18] Speaker 01:
We will take action against the agency.

[00:16:21] Speaker 01:
Doesn't that trouble you?

[00:16:23] Speaker 01:
The fact that someone would be trying to influence a decision maker by threatening the agency?

[00:16:30] Speaker 02:
I might not read her email in the same way that you do.

[00:16:35] Speaker 01:
Well, it made Mr. Bernhard afraid.

[00:16:37] Speaker 02:
But I appreciate it.

[00:16:40] Speaker 02:
Thank you for your argument.

[00:16:42] Speaker 02:
If you are in your rebuttal time, would you like to ask your rebuttor?

[00:16:45] Speaker 01:
I want to reserve whatever I can have for rebuttal.

[00:16:48] Speaker 02:
Do you have any other questions?

[00:16:50] Speaker 02:
No.

[00:16:51] Speaker 02:
OK.

[00:16:53] Speaker 02:
Mr. Wong?

[00:16:54] Speaker 02:
Thank you.

[00:16:56] Speaker 06:
May it please the court.

[00:16:58] Speaker 06:
The board's careful analysis of the ex parte issue is supported by substantial evidence, and it should be sustained.

[00:17:04] Speaker 06:
Going to, I think, what was some confusion in your prior conversation with my friend Mr. Magri, there were two charges.

[00:17:11] Speaker 06:
There was conduct on becoming an inappropriate behavior toward a supervisor.

[00:17:16] Speaker 06:
And so that first charge relating to the party in the day after,

[00:17:22] Speaker 06:
Those were supported by two specifications, which I think, Your Honor, the presiding judge was referring to.

[00:17:30] Speaker 06:
And then there was some conduct that involved Dr. Bolden that took place in the workplace.

[00:17:35] Speaker 06:
I don't read.

[00:17:37] Speaker 06:
Dr. Bolden's message at Appendix 1635 as addressing the workplace, what ultimately became the workplace charge, but rather seems to be focused on Mr. Rooter's behavior at the party in the day after toward two former agency contractors.

[00:17:55] Speaker 06:
And so I don't think that that does not detract from the board's analysis.

[00:18:02] Speaker 06:
My point is just to sort of clarify the record in that respect.

[00:18:05] Speaker 03:
Can you address this whole issue about whether or not these ex parte communications were cumulative?

[00:18:13] Speaker 06:
Yes, Your Honor.

[00:18:14] Speaker 06:
I think that the board's analysis at appendix 51 and 52 don't focus with respect to Dr. Bolden's email on the cumulative nature of the information therein.

[00:18:30] Speaker 06:
I think it's fair to wonder how Mr. Ruder would be surprised that Dr. Bolden was concerned about his behavior.

[00:18:39] Speaker 06:
The board's focus instead was that this communication was less extensive than the case primarily relied upon by Mr. Ruder, which is Sullivan, which is a very different set of facts.

[00:18:49] Speaker 06:
There were repeated communications.

[00:18:51] Speaker 06:
There was a four-page memorandum from

[00:18:54] Speaker 06:
a Captain Westbrook to the deciding official.

[00:18:57] Speaker 06:
And that really formed the basis of the board's analysis, I think going to the newness and materiality of the information.

[00:19:06] Speaker 06:
And then the board proceeded with respect to this email to consider the possibility of Dr. Bolden placing undue pressure.

[00:19:14] Speaker 06:
And the board concluded that that was not likely due to the nature of Dr. Bolden's situation she had requested around that time.

[00:19:23] Speaker 06:
a demotion to a non-supervisory position, and some other things.

[00:19:28] Speaker 06:
And I think going to Judge Cunningham's question of my friend,

[00:19:33] Speaker 06:
The fact that it was a subordinate, I think, is a pertinent point.

[00:19:38] Speaker 06:
There are some cases in which there were communications from the deciding official's superior.

[00:19:43] Speaker 06:
You mean that she was a subordinate?

[00:19:44] Speaker 06:
Yes, Your Honor, yes.

[00:19:46] Speaker 06:
I apologize.

[00:19:46] Speaker 04:
Who was a subordinate of hers?

[00:19:48] Speaker 06:
I was speaking of, yes, Dr. Bolden being subordinate of Mr. Bernhardt and ultimately Mr. Strzelczyk.

[00:19:55] Speaker 06:
There is some relevance to that.

[00:19:57] Speaker 06:
Stone tells us that it's a case-by-case fact-bound analysis.

[00:20:01] Speaker 06:
But the board clearly was focused on that as well, in addition to the workplace situation or dynamics that were in place at the point of that March 9, 2017 email.

[00:20:18] Speaker 06:
I apologize, Your Honor.

[00:20:22] Speaker 06:
factual point that I wanted to touch upon is I am not aware of any evidence in the record that the OSCE investigation was impacted by the withdrawal of the notice of proposed removal by Mr. Bernhardt.

[00:20:38] Speaker 06:
That notice of proposed removal occurred on August 31, 2017.

[00:20:49] Speaker 06:
I am not aware of any evidence that there's a connection there.

[00:20:52] Speaker 06:
And it was suggested, I wanted to make clear.

[00:20:54] Speaker 06:
I don't believe that's the case.

[00:20:55] Speaker 02:
How do you respond to Mr. Magri's point that the timeline provided something new because it gave information, for example, including the early date at which Dr. Bolden was suggesting removal?

[00:21:15] Speaker 06:
address this and its findings, supported by substantial evidence, and finding that it was cumulative information, I believe.

[00:21:22] Speaker 06:
And in that, well, I actually am not picturing the board's statement on this.

[00:21:28] Speaker 06:
But it was cumulative insofar as Mr. Rooter was aware that Dr. Bolden had learned of these allegations and brought them to the attention of management.

[00:21:42] Speaker 06:
It's difficult also to understand why it would be particularly material that she had proposed it.

[00:21:46] Speaker 06:
I don't understand how that really would have an impact, well, why it would be important to know from his perspective in terms of his ability to respond to that, that she had been interested in his removal at that point, as opposed to some later pointer, Mr. Bernhardt, who ultimately was responsible

[00:22:06] Speaker 06:
actually communicating the recommendation or the proposal to the deciding official.

[00:22:19] Speaker 04:
Do you think that the fact that there was a withdrawal of the initial notice and a reinstitution of the notice has any effect

[00:22:34] Speaker 04:
on any communications that may have occurred prior to the institution of the second notice.

[00:22:41] Speaker 04:
Put another way, do you think that the fact that the process was begun again with a new notice effectively renders any prior communications less significant?

[00:22:57] Speaker 06:
I don't think that was the focus of the board, Your Honor.

[00:22:59] Speaker 06:
I think they were more focused on the

[00:23:01] Speaker 04:
Duration or that I'm just curious right?

[00:23:08] Speaker 06:
It's not right We're not saying the government is not taking the position that the rescission and re issuance could Negate any improper earlier expertise communications.

[00:23:21] Speaker 04:
Yes, it's fact.

[00:23:22] Speaker 06:
It's fact bound I don't want to go too far out there on it, but in this case.

[00:23:26] Speaker 06:
There's no reason.

[00:23:26] Speaker 06:
There's no reason to take that position I think

[00:23:29] Speaker 06:
If there are no further questions.

[00:23:32] Speaker 04:
Let me ask you this question.

[00:23:33] Speaker 04:
I think I'll ask it of Mr. Magri again as well.

[00:23:39] Speaker 04:
What is it your understanding of the universe of communications that we should be looking at here?

[00:23:45] Speaker 04:
We have, obviously, 1635.

[00:23:48] Speaker 04:
And we have had our attention called to one or two others.

[00:23:51] Speaker 04:
1674, I believe, is one of them.

[00:23:56] Speaker 04:
So that we have an idea of what we're talking about here, is it a closed set that we can look at?

[00:24:06] Speaker 06:
Well, Your Honor, I'd like the court my focus.

[00:24:10] Speaker 04:
Maybe I should ask Mr. Negri first.

[00:24:12] Speaker 04:
But do you have an idea as to what we're talking about?

[00:24:15] Speaker 04:
Because there are references to communications and a focus on 1635.

[00:24:21] Speaker 04:
But I was unclear how many of those communications we have here in the appendix and which ones are deemed objectionable by Mr. Roderich.

[00:24:33] Speaker 06:
Well, Your Honor, I think and hope that the appendix contains the universe of communications that were brought up at the board.

[00:24:39] Speaker 06:
That said, I think, obviously, as you would expect me to say, Mr. Rooter is obviously master of his own case.

[00:24:49] Speaker 06:
The briefs focus on particularly that March 9, 2017 email, and there are sort

[00:24:56] Speaker 06:
passing references, I think the reply brief talks about another email that hasn't come up yet.

[00:25:01] Speaker 06:
Oh, I'm sorry, that you discussed with Mr. Magri that back and forth, or single email, I guess, about Dr. Bolden's performance review.

[00:25:11] Speaker 06:
Those are really the two communications that I view as being placed here.

[00:25:15] Speaker 04:
What about the timeline?

[00:25:17] Speaker 06:
Yes, I suppose the timeline does come up in the opening brief That is

[00:25:32] Speaker 06:
Yes, Your Honor.

[00:25:34] Speaker 06:
That is, as Judge Bryson has beat me there, it is at PPX 1671.

[00:25:39] Speaker 06:
Yes.

[00:25:41] Speaker 06:
So I think it's fair to conclude, and of course Mr. Magri will have his own view, that those three communications are really what's been placed at issue as the universe of improper ex parte communications that would support due process violations.

[00:26:07] Speaker 02:
rebuttal time to three minutes.

[00:26:09] Speaker 02:
I'm sorry?

[00:26:12] Speaker 02:
Yes, he can have some rebuttal time.

[00:26:14] Speaker 02:
Thank you very much.

[00:26:21] Speaker 02:
Give him three minutes.

[00:26:23] Speaker 02:
Before he starts his rebuttal time, Judge Bryson's going to ask him this question.

[00:26:27] Speaker 04:
I just wanted to ask you the same question that I asked for your opposing counsel.

[00:26:31] Speaker 04:
Yes.

[00:26:32] Speaker 04:
What is the universe of communications

[00:26:35] Speaker 04:
that you see as objectionable.

[00:26:38] Speaker 04:
Because it was not clear.

[00:26:43] Speaker 04:
Which ones are ones that you think created the dipostasis issue here?

[00:26:48] Speaker 01:
Well, I have pointed out the 1868.

[00:26:53] Speaker 01:
I've pointed out, or I'm going to point out, 1635.

[00:26:56] Speaker 01:
1635, I have.

[00:26:57] Speaker 04:
OK.

[00:26:58] Speaker 04:
You want to say 1868?

[00:27:01] Speaker 04:
1868.

[00:27:03] Speaker 01:
This is the one where Bernhard Samy is very afraid and furthest

[00:27:10] Speaker 01:
further complaints and potential impact on OSC.

[00:27:14] Speaker 01:
And I'll also point to 1679 as well.

[00:27:26] Speaker 01:
I want to say one thing though, because I think it's important from our standpoint.

[00:27:33] Speaker 01:
My belief is that

[00:27:39] Speaker 01:
From the beginning, Ms.

[00:27:41] Speaker 01:
Boland was making a singular claim, in essence, that he should be terminated.

[00:27:50] Speaker 01:
She met weekly with Strelchek.

[00:27:52] Speaker 01:
She testified on Appendix 2080 to talk about the status of the investigation.

[00:27:58] Speaker 03:
Can you just pause on that?

[00:27:59] Speaker 03:
I just want to make sure I've got the universe right.

[00:28:01] Speaker 02:
OK.

[00:28:02] Speaker 02:
Just make sure we've got it.

[00:28:05] Speaker 02:
It's A1635, A1679.

[00:28:09] Speaker 02:
And 1868, those are the pages you're referring us to?

[00:28:13] Speaker 02:
That's it, full stop, right?

[00:28:16] Speaker 01:
Well, those are the written communications, but these reflect, each of these documents reflect prior communications.

[00:28:27] Speaker 01:
with her about this issue, she testified that she met weekly with Strzelczyk about these issues.

[00:28:36] Speaker 01:
I have page 2080.

[00:28:38] Speaker 01:
But see, Orla.

[00:28:39] Speaker 02:
1860.

[00:28:40] Speaker 02:
Is that what you're referring to?

[00:28:42] Speaker 01:
No.

[00:28:42] Speaker 04:
Did you understand her testimony?

[00:28:44] Speaker 01:
2080.

[00:28:45] Speaker 01:
Appendix 2080.

[00:28:47] Speaker 01:
Now, in Sullivan, it wasn't limited to just written communications.

[00:28:53] Speaker 01:
It included the oral ones that occurred, and there were many in this case.

[00:28:57] Speaker 02:
I understand, but on appeal, you have to identify what they are so we can look at them.

[00:29:02] Speaker 01:
OK, I'm sorry.

[00:29:03] Speaker 02:
And so that's why we're asking you these questions.

[00:29:05] Speaker 02:
Presumably, they're in your opening brief.

[00:29:08] Speaker 04:
Well, now, 2080, did you say?

[00:29:10] Speaker 04:
Because I don't have a 2080.

[00:29:12] Speaker 04:
I have a jump from 1949 to 2086.

[00:29:18] Speaker 04:
Which means it's not in your opening brief.

[00:29:22] Speaker 01:
I guess not.

[00:29:26] Speaker 04:
Is that possible?

[00:29:27] Speaker 01:
No, it's not possible.

[00:29:29] Speaker 01:
Check your appendix.

[00:29:30] Speaker 04:
Do you have a copy of your appendix there?

[00:29:33] Speaker 04:
Because it's possible that my appendix is missing a page.

[00:29:37] Speaker 04:
That happens sometimes.

[00:29:48] Speaker 04:
So I skipped my copy of the appendix from 1949 to 2086.

[00:30:03] Speaker 01:
There is.

[00:30:04] Speaker 01:
It is 20th.

[00:30:05] Speaker 01:
Oh, wait a minute.

[00:30:07] Speaker 01:
But 2086 is born.

[00:30:09] Speaker 04:
2086.

[00:30:10] Speaker 01:
I'm sorry.

[00:30:10] Speaker 01:
Thank you very much, Your Honor.

[00:30:12] Speaker 01:
Thank you.

[00:30:13] Speaker 01:
I had to report to Stroultrake weekly.

[00:30:15] Speaker 01:
You can go.

[00:30:17] Speaker 02:
Can I ask you one other thing?

[00:30:18] Speaker 02:
You mentioned the timeline earlier, and that is page A, 1671.

[00:30:24] Speaker 02:
Are you dropping that argument now so we can identify it?

[00:30:28] Speaker 02:
Oh, no.

[00:30:28] Speaker 01:
No, in the timeline, it identifies not only that she proposed the thing, which of course... I don't want your argument right now.

[00:30:38] Speaker 02:
I'm just trying to identify the communication.

[00:30:41] Speaker 02:
So my question was, because you didn't mention A1671, I want to make sure you're not waving it right now.

[00:30:47] Speaker 01:
Oh, no, no.

[00:30:48] Speaker 01:
No, I'm not waving at the sites that are in the brief.

[00:30:53] Speaker 01:
I'm not.

[00:30:54] Speaker 02:
All right.

[00:30:55] Speaker 02:
Thank you.

[00:30:56] Speaker 02:
I think we understand the pages you've identified.

[00:30:58] Speaker 02:
So we're going to go ahead and start your time now.

[00:31:01] Speaker 01:
OK.

[00:31:03] Speaker 01:
Thank you, Your Honor.

[00:31:05] Speaker 01:
I understand those three factors in stone to be weighable.

[00:31:19] Speaker 01:
You look at each one of them.

[00:31:22] Speaker 01:
And if one of them is particularly strong, you have to consider that with the others.

[00:31:29] Speaker 01:
It is hard for me to overstate, and perhaps I'm dead wrong.

[00:31:34] Speaker 01:
You're the protectors of the process, and you're the people that have to make these decisions.

[00:31:41] Speaker 01:
But it's hard for me to understand how it is that someone that is putting that kind of pressure to cause a second line manager

[00:31:52] Speaker 01:
at commerce to say, I'm afraid.

[00:31:56] Speaker 01:
And I think this will hurt us with the OSC.

[00:31:59] Speaker 01:
And I think more complaints will come.

[00:32:01] Speaker 01:
It's hard for me to understand.

[00:32:03] Speaker 01:
And none of those things, by the way, are rooted.

[00:32:08] Speaker 01:
His guilt.

[00:32:10] Speaker 01:
or lack thereof.

[00:32:12] Speaker 01:
So it's hard for me to understand how that is not undue pressure in a very significant way.

[00:32:18] Speaker 01:
And it occurred periodically.

[00:32:21] Speaker 01:
When he made the whistleblowing case on a claim on October 8th that the judge found, well, on October 13th, there is, and that's K.K., that's appendix

[00:32:34] Speaker 01:
01679.

[00:32:38] Speaker 01:
There's a meeting with Bernhard in Bolden where she is saying, I don't know if you guys have my back.

[00:32:46] Speaker 01:
I want to terminate them.

[00:32:48] Speaker 01:
I don't know if you have my back.

[00:32:50] Speaker 01:
And he says, well, you ought to do what you think is right.

[00:32:54] Speaker 01:
And she keeps protesting.

[00:32:56] Speaker 01:
And he ultimately says, I'm going to, if you give it, if you propose it,

[00:33:04] Speaker 01:
I'll support it.

[00:33:06] Speaker 01:
Now after that, that's on the 13th, then comes the proposal on November 3rd.

[00:33:23] Speaker 01:
Then comes the stay while another investigations are being done.

[00:33:30] Speaker 01:
And then a whistleblowing complaint is filed in June of 2016.

[00:33:36] Speaker 01:
And Bernhard knows he's listed as, in essence, a subject with OSC.

[00:33:43] Speaker 01:
And he's interviewed by OSC in August of 2016.

[00:33:48] Speaker 01:
So all of these things, one follows the other.

[00:33:59] Speaker 01:
In the process of this, the same request or demand, I submit, is being made by Boland, terminating.

[00:34:12] Speaker 02:
Do you have any further?

[00:34:13] Speaker 02:
You're out of time.

[00:34:16] Speaker 02:
Do you have any further sentence to wrap things up?

[00:34:19] Speaker 01:
I think I'll rely on what was said.

[00:34:23] Speaker 01:
And I appreciate your kindness with the time and whatnot.

[00:34:26] Speaker 01:
Thank you.

[00:34:27] Speaker 02:
Thank you.

[00:34:28] Speaker 02:
The case is submitted on the loose.