[00:00:00] Speaker 03: Our third case is number 23-16-64, Benton Flores versus Defense. [00:00:03] Speaker 03: OK, Mr. Baum? [00:00:04] Speaker 03: Good evening, Your Honor. [00:00:08] Speaker 04: Yes. [00:00:08] Speaker 04: Thank you. [00:00:10] Speaker 04: Your Honors, I may please the court, Christopher Baum, Court Petitioner of Redale, Benton Flores. [00:00:15] Speaker 04: This is a whistleblower retaliation case on whether disclosures by a school teacher addressing threats to the safety of her students are any protected under the law. [00:00:28] Speaker 04: We would posit yes. [00:00:29] Speaker 04: Here, the board erred in two distinct ways. [00:00:36] Speaker 04: First, in its 2014 holding, or in arbitrarily discarding its 2014 holding, that Ms. [00:00:43] Speaker 04: Ben-Floris's disclosures were indeed protected. [00:00:45] Speaker 02: Those are two different standards, though, right? [00:00:47] Speaker 02: One is you have to make a non-privilege allegation to get jurisdiction. [00:00:51] Speaker 02: But then you have to, once you have jurisdiction, you have to prove by pronged evidence. [00:00:56] Speaker 02: So how could a non-privilege allegation that's a very low burden [00:00:59] Speaker 02: bind the board to a decision on the later merits. [00:01:05] Speaker 04: Entirely different burdens there you honor correct and that's that's our point here is that that? [00:01:11] Speaker 04: Procedurally that matter was dismissed at the earlier level at the administrative judge level at the board on Jurisdictional grounds was appealed up to the board the board Reviewed it based on the jurisdictional review But in doing so it did not only address the jurisdictional issues Specifically for the issue of where the disclosures protected or not it also went into the merits determination it issued a specific finding on the merits [00:01:35] Speaker 04: beyond the jurisdiction. [00:01:36] Speaker 02: Well, let's say we disagree with you on that, and that all the board's opinion was doing was sending it back and saying, there's non-furtherless allegations here. [00:01:44] Speaker 02: You have to hear the case of the Barons. [00:01:47] Speaker 02: Then that earlier decision can't be binding, right? [00:01:51] Speaker 04: I'm sorry. [00:01:51] Speaker 04: Are you asking a hypothetical of that? [00:01:53] Speaker 02: I think your reading of the board's decision is wrong. [00:01:56] Speaker 02: It did not find that she had made a protected disclosure. [00:02:00] Speaker 02: It found that there was a non-furtherless allegation insufficient [00:02:05] Speaker 02: are sufficient to support board jurisdiction. [00:02:07] Speaker 02: If I'm correct in reading the board decision that way, then your argument about the binding effect of the earlier board decision [00:02:14] Speaker 02: goes away, and then you need to get to the substantial evidence question of whether she had reasonable belief. [00:02:21] Speaker 04: That's correct, Judge. [00:02:22] Speaker 04: And if in that event, absolutely, that binding effect argument would go away. [00:02:27] Speaker 04: We do believe that the board's language there within that finding, within the 2016, or excuse me, within the 2014 determination, there's very- It would be pretty rare for the board as an appellate body in the MSPB system to go ahead and decide [00:02:45] Speaker 02: upon the merits that she'd made disclosures with when there had been no full trial or anything like that. [00:02:51] Speaker 04: Not so rare. [00:02:52] Speaker 04: There's plenty of instances. [00:02:53] Speaker 04: I think we've cited a few of them brief. [00:02:54] Speaker 04: The Johnsworth Veterans Affairs case, 2003, the Orr versus Treasury case, this court, excuse me, affirmed in 2000 on that. [00:03:01] Speaker 04: Both of those situations are IRA appeals, like this one, where there was this. [00:03:05] Speaker 02: Well, we don't have to get into whether it's rare or not. [00:03:08] Speaker 02: It's not the normal course of things. [00:03:11] Speaker 02: There was no record developed, so the board sent it back to hear a case. [00:03:15] Speaker 04: The record was certainly like, Judge. [00:03:18] Speaker 04: And I think that's one of the issues that it really speaks to how low of a burden it really is for the preponderance evidence standard for whether these disclosures are protected or not. [00:03:27] Speaker 02: I mean, there's not a different preponderance evidence for whistleblower cases versus any other case. [00:03:33] Speaker 02: It's the preponderance standard. [00:03:34] Speaker 04: Certainly, certainly. [00:03:36] Speaker 04: But here, when the board reached its decision in 2014, when it had this car belt, when it had this finding, excuse me, not the car belt, but finding that the disinterested observer could have reason to do it at appendix 56, that the appellant's disclosures proved to provide the same ones we're looking at here today, [00:03:51] Speaker 04: where disclosures of violations are law, rule, or regulation. [00:03:55] Speaker 04: It went on further. [00:03:55] Speaker 04: There's a footnote there, footnote three, going back to the board. [00:03:59] Speaker 04: Chavez's case, again, digging into this issue of, has Ms. [00:04:03] Speaker 04: Fentifloris provided sufficiently detailed statements to implicate an identifiable violation of law, rule, or regulation? [00:04:07] Speaker 04: Because the board notes, [00:04:08] Speaker 04: In the 2014 decision, she doesn't specify what law, rules, or regulations. [00:04:14] Speaker 04: There are not specific identifications of that. [00:04:16] Speaker 04: But that's okay. [00:04:16] Speaker 04: And the board notes that that cited provision of Chavez specifically goes to the merits. [00:04:20] Speaker 04: It is not a jurisdictional determination and not a jurisdictional discussion that the court cites in that. [00:04:26] Speaker 03: Well, I mean, I guess from now we're dealing with the question of whether she had a reasonable belief as to these. [00:04:31] Speaker 03: particular instances presenting a danger to health or safety or some violation of a regulation. [00:04:38] Speaker 03: So when the board in the earlier decision said that there was jurisdiction, they weren't resolving the question of whether she had a reasonable belief, correct? [00:04:48] Speaker 04: They were resolving that as well. [00:04:49] Speaker 04: In addition, I think the board goes on to note the jurisdictional satisfaction, the satisfaction of the jurisdictional burden. [00:04:57] Speaker 02: Necessarily so, because they- Where in the board's decision does it say that she has met her [00:05:03] Speaker 02: burdened by a preponderance that she had a reasonable belief. [00:05:07] Speaker 04: It does not judge, yeah. [00:05:08] Speaker 04: They do not just go out and explicitly state that. [00:05:11] Speaker 04: I'll admit that the language on that doesn't go that quite that far. [00:05:15] Speaker 01: So what are you relying on then to say that that's been resolved? [00:05:18] Speaker 04: Because that's the board's holding at 56 that the disinterested observer could have reasonably be concluded and so forth. [00:05:24] Speaker 04: That is not the jurisdictional verdict. [00:05:27] Speaker 04: But the jurisdictional verdict as well. [00:05:28] Speaker 02: But this is all under the heading of the appellant named non-frivolous allegations of protected disclosures. [00:05:34] Speaker 02: And so they're saying that under the non-frivolous standard, we find that a disinterested observer could have reasonably concluded that. [00:05:41] Speaker 04: Yeah. [00:05:41] Speaker 04: And I think, Judge, in aspect. [00:05:43] Speaker 04: I think you need to move on to your substantial argument. [00:05:45] Speaker 04: Understandable. [00:05:46] Speaker 04: I appreciate that, Judge. [00:05:47] Speaker 04: You have other arguments there. [00:05:49] Speaker 04: We certainly do. [00:05:50] Speaker 04: And I think, on to that point, one of our concerns, our main concern, is the judge or the board here in holding that Ms. [00:05:59] Speaker 04: Ben-Floris has not met her preponderant evidence standard with demonstrating that these disclosures are protected. [00:06:06] Speaker 04: has essentially elevated, escalated, moved the goalposts on Ms. [00:06:09] Speaker 04: Benton-Forest as to what that standard is and what she needs to do to fill that. [00:06:14] Speaker 04: As mentioned, Ms. [00:06:15] Speaker 04: Benton-Forest did not specifically articulate law rules or regulations within that, her disclosures, but again, all she needs to do is provide sufficiently detailed statements. [00:06:24] Speaker 03: Yeah, I don't think there's really any issue about whether she had to cite the particular regulation or not. [00:06:30] Speaker 02: Certainly, Judge. [00:06:31] Speaker 02: But she has to nod to at least some kind of policy or something like that with specificity, right? [00:06:38] Speaker 02: It can't just be vague, conclusory allegations, which is what the board found here. [00:06:42] Speaker 04: But here, in the circumstances we're looking at here, I think are very interesting when it comes to that question. [00:06:48] Speaker 04: Because to your point as to a nod or something, or indicate maybe she has to say that it's contrary to school regulation. [00:06:55] Speaker 04: but she doesn't have a specific number. [00:06:57] Speaker 04: I don't think it's even that granular. [00:06:59] Speaker 04: Here, you have a school facility. [00:07:01] Speaker 04: There's a reasonable understanding that there's going to be rules, regulations, setting forth guidelines for safety of children in the school. [00:07:10] Speaker 03: I mean, to cut through this, I think it is fair to say that there was a policy that the school had against child abuse. [00:07:19] Speaker 03: because there was a policy that people could be disciplined for not reporting child abuse. [00:07:25] Speaker 03: That must mean that child abuse is a violation of the policy. [00:07:29] Speaker 03: So the question in my mind is whether, looking at these allegations, she sufficiently alleged child abuse, particularly 3A, 3B, and 3C. [00:07:42] Speaker 03: understand what happened before the board, there was some issue about whether, I guess, 3A and 3B were, whether she actually made those allegations, but I don't think that issue was resolved by the board. [00:07:59] Speaker 03: So the question is, on the face of it, did 3A, 3B, and 3C allege sufficiently child abuse? [00:08:08] Speaker 04: And so Judge, to your point on 3A and 3B, those were verbal only disclosures to the point of whether they were raised or not. [00:08:14] Speaker 04: Those were ones where I think the leadership acknowledged they didn't recall the specifics of those allegations. [00:08:21] Speaker 03: Yeah, but I don't read the board as saying that they disbelieved her when she said she raised these allegations. [00:08:27] Speaker 03: OK, so let's assume that they were dealing with a situation in which we have to assume [00:08:33] Speaker 03: that she made the allegations. [00:08:34] Speaker 03: So address the question of whether those allegations in 3A, 3B, and 3C sufficiently allege child abuse. [00:08:42] Speaker 04: So she doesn't have to specifically allege child abuse here. [00:08:45] Speaker 02: I think this goes to- But she has to do more than just allege. [00:08:48] Speaker 04: mistreatment certainly and so here we've got we've got some of the the Regulations that are just not I'm getting to your question. [00:08:55] Speaker 04: They're just like as well on this the board noted in 2014 you have specific DOD regulations 4,800 4,700 4,800 particular deals with safety of the children It's fairly broad admittedly so but here like for example in 3a we have a situation where we're missing benefits [00:09:12] Speaker 04: That's the disclosure regarding the drugging. [00:09:15] Speaker 03: You've got to clarify this for me. [00:09:17] Speaker 03: What are you saying is the standard that she thought was violated? [00:09:22] Speaker 04: So I think... Specifically, what's the standard? [00:09:25] Speaker 04: The most specific one we have here is 4800. [00:09:27] Speaker 04: 4800 is dealing with the safety, making sure the school's facilities are safe for the children here. [00:09:33] Speaker 04: 4800. [00:09:33] Speaker 04: She doesn't have to cite to it. [00:09:35] Speaker 03: She recently said she... No, no, I understand she doesn't, but you have to cite to it now. [00:09:38] Speaker 03: You have to convince us that her allegations are [00:09:42] Speaker 03: amount to allegations of violations of that policy. [00:09:45] Speaker 03: What's the policy? [00:09:46] Speaker 03: The policy is children should be safe. [00:09:48] Speaker 03: What's the policy? [00:09:49] Speaker 04: The policy is the safety program 4800. [00:09:52] Speaker 04: It's the one noted in the 2014 decision requires safe classroom environments. [00:09:56] Speaker 04: There's addendum four that includes examples of no hot plates, open flames, et cetera, which goes to the exposed razor blade issue as well, ensuring safe conditions and practices for all DoDEA facilities, including outdoor. [00:10:06] Speaker 03: So the allegation is that they didn't maintain a safe environment for the children. [00:10:10] Speaker 04: It's a very broad statement. [00:10:13] Speaker 03: Yes, no. [00:10:14] Speaker 03: What's the standard? [00:10:19] Speaker 03: It's a situation here we have... What is the standard that she was saying was violated? [00:10:25] Speaker 03: She didn't specify. [00:10:26] Speaker 03: I understand, but you're saying now that her allegations fell into the category of alleging a violation of a standard. [00:10:34] Speaker 03: What is the standard? [00:10:37] Speaker 04: If I'm understanding your question, Judge, correctly, the standard that she's alleging violating are these general requirements for maintaining safety for the children in the classroom. [00:10:45] Speaker 03: OK. [00:10:46] Speaker 03: So she was alleging, in your view, that the school wasn't maintaining a safe environment for the children, right? [00:10:52] Speaker 03: Correct, Judge. [00:10:53] Speaker 03: OK. [00:10:53] Speaker 03: So how does 3A, 3B, and 3C allege [00:10:57] Speaker 03: the failure to maintain a safe environment. [00:11:00] Speaker 03: I'm not following that. [00:11:01] Speaker 04: So for 3A, for example, that's the dragging and isolating of student disclosure. [00:11:06] Speaker 04: That's a situation bespent in Flores Seas, a three-year-old with special needs being physically dragged, crying, it's part of the disclosure, from their classroom, from their classmates into isolation. [00:11:15] Speaker 03: OK, but these are autistic children. [00:11:18] Speaker 03: I mean, we know that they act up under certain circumstances. [00:11:22] Speaker 03: They're going to have to be physical restraint of the children [00:11:27] Speaker 03: would not be normal in a traditional environment. [00:11:31] Speaker 03: So why is the allegation here, given the context in which this arose, a violation of failure to maintain a safe environment? [00:11:40] Speaker 04: Because here, again, it goes to this context. [00:11:44] Speaker 04: It goes to this context of you have missed, of course, a special needs educator here observing the physical dragging of a child crying [00:11:51] Speaker 04: into isolation. [00:11:53] Speaker 04: She raises in the disclosure that this manner of isolation, to her understanding from what she observed, has been barred in a number of jurisdictions for decades. [00:12:01] Speaker 04: She reasonably understood that this is not maintaining a safe environment for the student. [00:12:06] Speaker 01: And so the question becomes... Do you agree with me that the regulation you're pointing to instructs the employees to take reasonable measures? [00:12:13] Speaker 04: I believe that's the case, yes, Joe. [00:12:15] Speaker 01: Okay. [00:12:15] Speaker 01: So in light of that, I understand that at least one of the issues was she thought there was a razor blade [00:12:21] Speaker 01: that put the children in danger, is that correct? [00:12:23] Speaker 04: That's one of the disclosures, absolutely. [00:12:26] Speaker 01: Why didn't she immediately remove it if that was one of the things that she was concerned about? [00:12:32] Speaker 04: The immediacy of her action on that, I think, is an independent question from, is her disclosure of the exposure of the razor blade protected or not? [00:12:41] Speaker 02: But it goes to whether she had a reasonable belief that it actually was a safety violation, because if she thought it was a safety violation, she would have picked it up and taken it away. [00:12:51] Speaker 02: and that it's a rather than trying to take a picture of the email to somebody to get some other guy in trouble because she thought he did i will continue to some other guy does that show a reasonable believe that there's an immediate safety violations and also that's the board's factual findings even if you disagree [00:13:07] Speaker 02: and say there are facts to the contrary, why isn't that a determination that's still going to be supported by substantial evidence? [00:13:15] Speaker 02: Because you have to prove that no reasonable person could have felt that this was not a safety violation, essentially. [00:13:29] Speaker 04: And so, Judge, on the safety, on the razor blade issue, and going a little bit back to your earlier question on the aid, that interaction with the razor blade came after this Disclosure 5, the physical altercation that she had with the aid. [00:13:44] Speaker 04: That sets a whole context on concerns about whether she can report this, whether she'll be believed when she reports this. [00:13:52] Speaker 02: I mean, the board said no reasonable person would have [00:13:55] Speaker 02: or she did not have a reasonable belief that the razor blade was a safety violation, because if she did, she would have removed it. [00:14:01] Speaker 02: That's a factual finding. [00:14:03] Speaker 02: We review it for substantial evidence. [00:14:05] Speaker 02: Why isn't there substantial evidence for that? [00:14:07] Speaker 02: Because here, the board's- I mean, it's common sense. [00:14:09] Speaker 02: If somebody thought this was an immediate safety violation, they would pick it up and put it away. [00:14:14] Speaker 04: And here, the board's assessment in our concern with that is the board's [00:14:22] Speaker 04: delving into this intent, delving into the timing on that, that's beyond the consideration that's required for whether or not the disclosure is protected. [00:14:33] Speaker 01: Why? [00:14:33] Speaker 01: That goes to reasonable relief. [00:14:36] Speaker 04: So it can. [00:14:40] Speaker 04: And I think that the inquiry of the board here on this, that the avenue of the board's inquiry on this is more appropriate in the circumstance if we're looking at disclosures of immediate and imminent [00:14:54] Speaker 04: health and safety issues, the public health and safety considerations for a disclosure, not whether there's a disclosure of a violation of law, rule, or regulation. [00:15:01] Speaker 04: We have 4,800 that specifically calls out leaving dangerous items in the workplace, excuse me, the classroom, things like open flames, hot plates, and all that, an exposed razor blade. [00:15:11] Speaker 04: Any reasonable person seeing that is going to understand that this violates some of this. [00:15:17] Speaker 01: But just going back to what Judge Hughes previously asked you, we talked about the fact that there was a picture taken, but it wasn't removed. [00:15:24] Speaker 01: To have it be a reasonable lead, he would think, common sense would say, that you'd actually remove the razor blade, if that's something that you're concerned about. [00:15:31] Speaker 04: So it was removed that same day. [00:15:34] Speaker 04: It was not just immediately removed. [00:15:38] Speaker 01: I think we can agree that at least it wasn't immediately removed. [00:15:42] Speaker 01: And I would think, you would probably also agree with me, her failure to immediately remove it could undermine her credibility before the board. [00:15:49] Speaker 04: And so, no, I don't believe that's the case here, Judge. [00:15:51] Speaker 04: Again, we have a situation where, going back to my earlier brief comments to Judge Hughes on this, where you have this interaction with the same individual, where Ms. [00:15:58] Speaker 04: Ben Flores was concerned that when she was reporting these misdeeds, these violations by him, she's being pushed aside, not being taken seriously, and then she needs to document this meticulously so that management would even look to this, not brush it aside. [00:16:15] Speaker 03: How could she have a reasonable belief that the exposed razor blade was a danger when she was present when the razor blade was on the desk? [00:16:24] Speaker 04: She came to it, she was present there, and she ensured by her presence that none of the children picked it up. [00:16:29] Speaker 03: The issue still goes to... If she's there and is watching the razor blade, why is there a danger to the children? [00:16:37] Speaker 04: Because again this goes to it goes to the same issue of what when she when she encountered the reasonable lady It wasn't you know she wasn't there for the entirety of the reasonable its pleasant presence before the children And I see my time is nearly concluded. [00:16:51] Speaker 03: I think we're out of time. [00:16:52] Speaker 03: We'll give you two minutes for a bottle. [00:16:54] Speaker 03: Thank you This form and Kova [00:17:12] Speaker 00: That was very close to my face. [00:17:14] Speaker 00: Good morning, Your Honors, and may it please the court. [00:17:17] Speaker 00: Fundamentally, I think what Ms. [00:17:18] Speaker 00: Benton-Floris has here is a dispute with the board about the weight of the evidence. [00:17:22] Speaker 00: And the board considered the full record, both Ms. [00:17:25] Speaker 00: Benton-Floris' disclosures, the testimony from other people in the school for behavior contemporaneously, and on balance on that record was simply unpersuaded that the disclosures. [00:17:37] Speaker 03: Let's focus on 3A, 3B, and 3C, which seems to me perhaps the strongest. [00:17:42] Speaker 03: argument that they have. [00:17:43] Speaker 03: And with respect to 3A and 3B, we have to assume [00:17:47] Speaker 03: on this record given the board's decision that she actually did make those disclosures, right? [00:17:55] Speaker 00: So Your Honor, I don't think that's correct. [00:17:56] Speaker 00: The administrative judge, the initial decision didn't really address that issue. [00:18:00] Speaker 03: I don't see any, where's the finding that she didn't make those disclosures? [00:18:04] Speaker 00: So the board at appendix pages seven and eight separately, if we look at the top of appendix page seven, give you a minute to join me there. [00:18:17] Speaker 00: And it is the one, two, three, fourth line at the... Seven, appendix seven and eight? [00:18:23] Speaker 03: Yeah. [00:18:25] Speaker 00: Okay. [00:18:27] Speaker 00: The board holds, we agree with the administrative judge's conclusion that the appellant failed to prove by preponderant evidence that she made disclosure 3A and it was protected. [00:18:37] Speaker 00: So we think it addresses both in the alternative [00:18:40] Speaker 00: that she didn't prove that she made it, and that if she made it, it wasn't protected. [00:18:44] Speaker 00: And similarly, if you look at the bottom of appendix page 8, the last sentence in the last paragraph, the board holds, therefore, we find that she is not proven by preponderant evidence that she made disclosure 3B and had a reasonable belief that it revealed wrongdoing that rose to the level of a violation of law, rule, regulation, or other protected category. [00:19:07] Speaker 00: So again, I think you could read that as sort of findings in the alternative, that she didn't prove that she made it, and if we assume that she made it, that she didn't persuade them that it was protected disclosures. [00:19:18] Speaker 03: Okay, so let's talk about whether 3A, 3B, and 3C were, if made, were protected disclosures. [00:19:26] Speaker 03: Certainly. [00:19:26] Speaker 03: I mean, she is talking about safety issues. [00:19:30] Speaker 00: Right. [00:19:30] Speaker 00: And I think generally speaking, I would say that the theme of the board's holding here is that she has a lot of incendiary conclusions and just not a lot of facts to back them up. [00:19:41] Speaker 00: And so she talks about that she says that it, which is why there was the jurisdictional holding. [00:19:46] Speaker 00: They said, yes, this is enough for a non-firmless allegation. [00:19:49] Speaker 00: But when it comes to the preponderance of the evidence standard, we just don't have enough here. [00:19:53] Speaker 00: And so she described the behavior as improper and dangerous. [00:19:59] Speaker 00: But what the board found is that they didn't have enough context to really understand whether a reasonable disinterested observer [00:20:07] Speaker 00: would interpret what was happening there as being indicative of child abuse or something that rose to the level of seriousness that would be a protective disclosure. [00:20:17] Speaker 02: How do we figure out the line on that? [00:20:21] Speaker 02: Or is that just a fat question for the board to resolve? [00:20:24] Speaker 00: It is just a fat question for the board. [00:20:26] Speaker 02: I mean, if a teacher picks up [00:20:28] Speaker 02: a kid and dangles them out the window. [00:20:30] Speaker 02: You don't have to specifically say this endangers the child's safety, right? [00:20:34] Speaker 00: Sure, but you'd have to describe that what happened was that we picked a child up and dangled them out the window. [00:20:38] Speaker 00: And I think there probably everyone would agree that a disinterested observer would have some concerns about that. [00:20:44] Speaker 02: If a teacher locked a child in a closet for a couple hours without letting them out, that seems on its face without much further description to be child endangerment. [00:20:55] Speaker 00: Sure, but I think here, what was happening here, and there was testimony. [00:20:59] Speaker 02: Let me finish. [00:21:00] Speaker 02: I'm trying to get at this. [00:21:02] Speaker 02: So we have this continuum. [00:21:04] Speaker 02: So where, again, I know your answer is just going to be this is a fact question. [00:21:08] Speaker 02: But in that continuum, if those two are clearly, without much other description, bad, then why isn't dragging a child against their will and forcibly placing them somewhere child endangerment? [00:21:26] Speaker 00: So a couple of reasons. [00:21:27] Speaker 00: I think one, and it is ultimately, I think it does, my ultimate answer to the court's question as predicted is that this is a factual question, and it is whether the board is persuaded on the weight of the evidence, whether it rises to the level of something that would be a violation of law, rule, or regulation. [00:21:44] Speaker 00: And here, for example, there was testimony that frequently you do have to remove children and sort of [00:21:49] Speaker 00: put them in sort of a quiet time out such that they can calm themselves down and it doesn't spread that speech therapists, which was the individual who removed the child, sometimes take children and sort of work with them on their own. [00:22:04] Speaker 00: And so the board's holding on this, and they recognized that potentially, given sort of the right context, it could be a very serious sort of situation that's being described. [00:22:14] Speaker 00: But here, with respect to 3A, again, in appendix page 7, they held that the appellant has not identified any additional evidence to further explain, for example, what led to the aid's actions, whether the child was harmed in any way, whether she feared that the child was harmed in any way, or precisely how she reasonably believed [00:22:36] Speaker 00: the quote, improper and dangerous actions amounted to a violation of law, rule, or regulation. [00:22:42] Speaker 00: And so they go on to say that the appellant may have reasonably believed that she was disclosing wrongdoing, but she failed to prove that she reasonably believed that she was disclosing wrongdoing that rose to the level of a violation of law, rule, regulation, or other protected activity. [00:23:00] Speaker 00: And we have sort of similar findings for 3B and 3C [00:23:05] Speaker 00: that what we don't know is sort of the context of what happened. [00:23:09] Speaker 00: Obviously, we have Ms. [00:23:10] Speaker 00: Becton-Flores's conclusions that she felt it was wrong and that she felt that her aides were not behaving appropriately, but that there wasn't enough information. [00:23:19] Speaker 01: Do you agree with opposing counsel's statement regarding what the policy would be that would be violated here? [00:23:29] Speaker 00: So what I didn't hear from opposing counsel is a specific policy identification. [00:23:33] Speaker 00: And I think that's part of the problem that the board had as well. [00:23:39] Speaker 00: I think sort of generally, obviously, we would expect that a school would want to ensure the safety of children. [00:23:45] Speaker 00: And it's sort of that level of generality. [00:23:47] Speaker 00: I think we do all agree. [00:23:48] Speaker 00: I thought he pointed to 4,800. [00:23:53] Speaker 01: Was that not correct in terms of what he pointed to? [00:23:57] Speaker 00: Well, 4800, you know, it talks about sort of the, you know, you have to, I guess they're sort of the broadest general statement to ensure a safe and healthy educational work environment for DO, DA, students, staff, and visitors. [00:24:14] Speaker 00: But otherwise, you know, it talks about implementing federal and safety standards, providing assistance for school officials to achieve compliance with the safety standards, [00:24:26] Speaker 00: you know, creating, you know, designating a health manager with oversight for development. [00:24:32] Speaker 00: I'm not sure it's actually really getting at, you know, what is this speech therapist allowed to do to remove a child who's having a tantrum and what kind of, in what circumstances, you know, they are supposed to... But just because it's a general policy, you know, essentially, you know, for child safety doesn't mean it's not a policy, right? [00:24:49] Speaker 02: So you could disclose, if you make a specific enough disclosure of child endangerment, [00:24:54] Speaker 02: That would be a disclosure about this policy being violated. [00:24:58] Speaker 00: I think that's right. [00:24:59] Speaker 00: I think really that the problem that the board had was the lack of specificity on what happened in order for them to sort of conclude that this was really a child safety issue, as opposed to just Ms. [00:25:12] Speaker 00: Benton-Flores' disagreement with how her aides were sort of doing their job. [00:25:19] Speaker 03: Well, I guess what we're missing, for example, under 3A is a question of whether dragging the child was contrary to policy or not. [00:25:30] Speaker 03: And we just, we really don't know whether that's the case or not, whether there's circumstances in which dragging the child could be consistent with policy and maybe some circumstances in which it wouldn't be. [00:25:41] Speaker 00: That's right. [00:25:42] Speaker 00: And there was testimony in the record from the vice principal and the principal that there are circumstances in which it's appropriate to remove a child and to let them calm down. [00:25:53] Speaker 00: Or there's circumstances where it's appropriate for a speech therapist to work one-on-one with a child. [00:25:58] Speaker 00: And it was the lack of corroborating evidence from Ms. [00:26:02] Speaker 00: Benjamin-Flores referred to other people witnessing some of these events. [00:26:06] Speaker 00: And there was no testimony put in from those individuals to corroborate [00:26:10] Speaker 00: What exactly happened? [00:26:11] Speaker 00: What was the context of sort of not just her conclusion about it, but what actually occurred on the ground that the board could decide whether a disinterested observer would agree with Ms. [00:26:23] Speaker 00: Benton-Flores' conclusions and would also sort of reasonably conclude that this was something that rose to the level [00:26:31] Speaker 00: that would constitute a protective disclosure. [00:26:34] Speaker 03: Well, with respect to 3A, I mean 3C, she says that restraining the child by somebody who wasn't trained was a danger to safety. [00:26:44] Speaker 03: And she says, to the best of my knowledge, the person who did it wasn't trained. [00:26:51] Speaker 03: So if she'd said, I know that the person who was doing the restraint wasn't trained, that would have been sufficient, right? [00:27:00] Speaker 00: Sure. [00:27:01] Speaker 00: I think she would also have helped to provide sort of a specific individual, like who was restrained when by whom and why she concluded that that person wasn't trained. [00:27:10] Speaker 03: She doesn't need necessarily to identify the person. [00:27:12] Speaker 03: She says, I know the person. [00:27:13] Speaker 03: I know the person wasn't trained. [00:27:15] Speaker 03: And under those circumstances, restraining the child was a danger to safety. [00:27:20] Speaker 03: That would have been sufficient, right? [00:27:22] Speaker 00: I mean, again, I think it would be ultimately up to the board to see how that balanced against the rest of the evidence. [00:27:27] Speaker 00: But I think that would be a much better, stronger case for her. [00:27:30] Speaker 00: And the board might have been more likely to believe her in that that was a reasonable and protected disclosure. [00:27:35] Speaker 03: So did the board conclude that she was speculating about the lack of training? [00:27:39] Speaker 00: That's right, yes. [00:27:40] Speaker 00: And this is at appendix 10. [00:27:45] Speaker 00: The board holds that the appellant did not disclose, for example, that an employee had actually restrained a child in a way that harmed or risked harming the child, nor did she disclose that an employee had restrained a child in a way that was contrary to law, rule, or regulation. [00:28:00] Speaker 00: Instead, the appellant simply suggested that someone restrained a child at some time and may have done so without training. [00:28:07] Speaker 00: And there was testimony also from the [00:28:10] Speaker 00: I believe it was the principal in the record about the fact that there is a lot of training and that the people who restraint, that sometimes restraint is necessary and required, but that they have specific trainings for the people who do that restraint such that it is not easy. [00:28:25] Speaker 01: So your argument hinges a lot on the specificity that was provided. [00:28:29] Speaker 01: Is that true? [00:28:30] Speaker 00: I think that the board's decision was essentially that she lacked specificity. [00:28:37] Speaker 00: And that is within their purview to weigh the totality of the evidence and see if they're persuaded. [00:28:44] Speaker 00: And they, in large part, at least based on the decision that they wrote, were unpersuaded given the lack of specificity in her disclosures. [00:28:55] Speaker 00: I'm happy to address the 2014 decision if the court has any questions about that. [00:29:00] Speaker 03: I think we're done. [00:29:01] Speaker 03: Thank you. [00:29:02] Speaker 00: Thank you, Your Honor. [00:29:05] Speaker 03: Mr. Baum? [00:29:07] Speaker 03: You have two minutes. [00:29:09] Speaker 04: Thank you, Judge. [00:29:10] Speaker 04: Just to address a couple quick points here. [00:29:12] Speaker 04: On this issue of the restraining of the child, I do want to point out that as to whether the [00:29:22] Speaker 04: points on that one specificity but one on the danger level of this that we do have testimony in the record there from the principal herself at appendix six three four she agreed that that [00:29:32] Speaker 04: an individual, a child restrained by untrained staff, such as Ms. [00:29:36] Speaker 04: Bentcors is alleged. [00:29:37] Speaker 04: Yes, she says the child may get hurt. [00:29:39] Speaker 04: The danger of this. [00:29:41] Speaker 02: But the problem with nobody disagrees with that, that restraining a child with untrained staff is wrong. [00:29:48] Speaker 02: The board's conclusion was she didn't provide sufficient allegations to show that that happened, that a reasonable person would think that happened. [00:29:57] Speaker 02: Because it was conclusively. [00:30:00] Speaker 02: And that's a fact finding. [00:30:02] Speaker 02: And there's substantial evidence for it. [00:30:05] Speaker 04: But again, I think that situation there goes, Judge, I think the board's backflying on that is applying those facts to this elevated standard that is outside the scope of what is required to demonstrate that that disclosure protected, that the level of specificity of the board digs into. [00:30:21] Speaker 02: The board applied exactly the correct standard, which is, did this person have a reasonable belief that she made a protected disclosure of a violation of a rule [00:30:32] Speaker 02: regulation or law. [00:30:34] Speaker 02: And the standard here is, as you said, child endangerment. [00:30:38] Speaker 02: Or if you want to get specific, there probably is a standard about restraints of children by unlicensed persons. [00:30:46] Speaker 02: But the board still said she did not meet her burden by preponderance [00:30:51] Speaker 02: of alleging that she had a reasonable belief that that ever happened, because she didn't know whether the people doing it were untrained or not. [00:31:00] Speaker 02: It was speculation. [00:31:01] Speaker 04: And that reasonable belief, though, here, I think it's worth noting, is fairly permissive here, or fairly open on that. [00:31:10] Speaker 02: You keep saying reasonable belief is permissive. [00:31:13] Speaker 02: It's a preponderance standard. [00:31:15] Speaker 02: You seem to want to convert it into a non-frivolous standard, which it is not. [00:31:20] Speaker 02: And the board made a determination that she didn't meet her burden by a preponderance, because the allegations were conclusory. [00:31:26] Speaker 02: And you're pointing to these conclusory allegations as sufficient. [00:31:30] Speaker 02: How can we overturn that? [00:31:33] Speaker 04: Because, Judge, here, it's simply the standard applied here, and that standard articulated by the spurt in Eddenfield, is simply whether a disinterested observer looking out onto this, the knowledge of the facts known to ascertainable violence in bed floors in these circumstances, [00:31:46] Speaker 04: Could they recently conclude that those disclosures evidence the violation of some identifiable law rule or regulation? [00:31:52] Speaker 02: Yes, but that's not our question to decide. [00:31:55] Speaker 02: That's a factual question for the board to make in the first instance. [00:31:58] Speaker 02: We're looking at whether there's substantial evidence to support that. [00:32:04] Speaker 02: And you have to prove that there's not substantial evidence. [00:32:07] Speaker 04: And Judge, the evidence or what the board is looking to on this in trying to assess this burden is beyond what's required to meet the standard. [00:32:17] Speaker 01: Can you tell us why you think there's a lack of substantial evidence, just basically following up [00:32:22] Speaker 01: in answering the question posed by Judge Hughes. [00:32:24] Speaker 04: Certainly. [00:32:25] Speaker 04: So here again, the lack of substantial evidence is because the board has applied their evidentiary assessment. [00:32:34] Speaker 04: Their evidentiary assessment is requiring the Senate floor to demonstrate this requirement, this burden of demonstrating these decisions. [00:32:44] Speaker 04: target has been moved, has been elevated here. [00:32:46] Speaker 04: So the board's finding, again, I think it's not an issue, a pure issue of, it's not supported by substantial evidence. [00:32:55] Speaker 04: It's a, is the board's assessment changing the standard, moving the goalposts on the spent floors, elevating it to a higher target than is required by the law. [00:33:04] Speaker 03: Okay. [00:33:04] Speaker 03: I think we're out of time. [00:33:05] Speaker 03: Thank you. [00:33:06] Speaker 03: Thank both counsel and the cases submitted.