[00:00:00] Speaker 01:
Our next case is Maris versus EPA, docket number 23-2248.

[00:00:05] Speaker 01:
Counselor Leno, you have reserved five minutes of time for rebuttal, correct?

[00:00:14] Speaker 01:
Yes.

[00:00:14] Speaker 01:
And I pronounced your name correctly?

[00:00:16] Speaker 05:
Yes, you did.

[00:00:21] Speaker 05:
All right.

[00:00:22] Speaker 05:
Can I ask for the court's indulgence for just two minutes?

[00:00:26] Speaker 05:
Good morning, Your Honors.

[00:00:28] Speaker 01:
Good morning.

[00:00:29] Speaker 05:
I apologize for my little disorganization here this morning.

[00:00:34] Speaker 05:
May it please the court?

[00:00:36] Speaker 05:
Good morning.

[00:00:37] Speaker 05:
I'm here today representing Susan Morris, who a very long time ago

[00:00:43] Speaker 05:
over ten years now was terminated from the EPA.

[00:00:51] Speaker 03:
Fifteen years.

[00:00:52] Speaker 05:
Fifteen?

[00:00:53] Speaker 03:
I know, I did the hearing.

[00:00:56] Speaker 05:
Yeah, yeah, you're right.

[00:00:58] Speaker 05:
Time flies.

[00:01:00] Speaker 03:
I suppose a lot of that may be attributable to the life of a quorum at the board.

[00:01:06] Speaker 03:
Yes, yes.

[00:01:07] Speaker 03:
And then there was a remand somewhere.

[00:01:10] Speaker 05:
Yes, it's that for a long time and then there was a ruling that there was no jurisdiction.

[00:01:14] Speaker 05:
Yeah.

[00:01:15] Speaker 05:
But that was reversed and we're not here on that.

[00:01:18] Speaker 05:
So what we're here on today is whether there is substantial evidence that there's clear and convincing evidence that the

[00:01:30] Speaker 05:
decision-maker would have proposed her removal regardless of her retaliatory motive.

[00:01:36] Speaker 05:
And so I think it's important to look at it not through the prism of just is there substantial evidence of, you know, could the evidence go either way, which is a very typical standard for preponderance of the evidence.

[00:01:49] Speaker 05:
We have to look at the evidence through the lens of was it reasonable to think that this is clear and convincing that even though

[00:01:59] Speaker 05:
looking at all three factors, there's a strong motive to retaliate, there's a weak case with the charges, and factor three of the car decision

[00:02:11] Speaker 05:
There is no evidence that the EPA has ever terminated or disciplined anyone under similar circumstances.

[00:02:19] Speaker 04:
Now, you said there's a weak case on par factor one, right?

[00:02:24] Speaker 04:
Was that the finding below?

[00:02:27] Speaker 04:
I didn't think that was the finding.

[00:02:28] Speaker 00:
No.

[00:02:28] Speaker 04:
I don't think they ever said weak.

[00:02:30] Speaker 04:
She never said strongly.

[00:02:32] Speaker 04:
So you're asking us to...

[00:02:34] Speaker 04:
Yeah, I agree.

[00:02:35] Speaker 04:
The word strong was not used.

[00:02:39] Speaker 04:
But you're not asking us to reweigh that, are you?

[00:02:42] Speaker 04:
I'm asking you to rule on whether, and it's not just charges, one, all the charges, is there a... Yeah, but I'm just digging into... You used the phrase weak, and so I'm trying to figure out what you're asking us to do with that.

[00:02:56] Speaker 04:
That couldn't be just a phrase you used.

[00:02:59] Speaker 04:
It's your personal view.

[00:03:00] Speaker 04:
But are you asking us to find that it's weak?

[00:03:03] Speaker 05:
I don't think you have to find that it's weak.

[00:03:05] Speaker 05:
I think you just have to find that it's not strong.

[00:03:08] Speaker 05:
And I don't even think, even though there are times when the AJ says that there was evidence and that the case was strong, when she goes through the four charges, well, first you have charge four, everybody agrees is rooted in, or

[00:03:32] Speaker 05:
what was the word, anchored in the protected disclosures.

[00:03:36] Speaker 05:
Charge four simply says you listed inappropriate information, and the inappropriate information are the disclosures.

[00:03:45] Speaker 05:
So the AJ says, well, we'll just disregard that when we're looking at the strength of the case.

[00:03:50] Speaker 05:
And I submit that that's wrong.

[00:03:53] Speaker 05:
That CAR directs that you look at the strength of the case of all of the charges.

[00:03:59] Speaker 05:
And one of the reasons for that is if

[00:04:02] Speaker 05:
The decision maker is putting forth charges that are so questionable, that kind of weakens the case that this is not based on retaliation.

[00:04:14] Speaker 05:
Charge one, the AJ doesn't find this, but I submit to you that that is also rooted in the protective disclosures.

[00:04:21] Speaker 05:
The thing that upsets the decision maker about the emails and the conference calls is that

[00:04:31] Speaker 05:
Ms.

[00:04:31] Speaker 05:
Morris is calling her incompetent.

[00:04:34] Speaker 03:
She's saying, you withheld those MD7s.

[00:04:37] Speaker 03:
Well, along with a number of people on the staff, in an email that is sent widely within the agency, I did not, I'll tell you quite frankly, think of this as a weak case.

[00:04:51] Speaker 03:
When I read the emails, I was shocked.

[00:04:57] Speaker 03:
the kind of language that was used and the kind of accusations that were thrown around.

[00:05:02] Speaker 03:
This is pretty strong stuff.

[00:05:06] Speaker 03:
I don't know whether you would have fired an employee for doing that, but I would.

[00:05:12] Speaker 05:
But I'm not incompetent.

[00:05:14] Speaker 05:
And you're not incompetent.

[00:05:15] Speaker 03:
Well, I'm sure that there are people who would disagree with that as to me.

[00:05:23] Speaker 03:
It's not just incompetence, but that's pretty bad.

[00:05:28] Speaker 03:
But she's been warned to be civil.

[00:05:31] Speaker 03:
And those emails are not civil.

[00:05:34] Speaker 03:
So I think other aspects of the case are pretty favorable for you, but not, I think, the corpus delicti.

[00:05:47] Speaker 05:
The charge one, right.

[00:05:48] Speaker 05:
So there's four charges.

[00:05:50] Speaker 05:
Charge four is about the protected disclosures.

[00:05:53] Speaker 05:
Charges two and three also have problems, but you're saying that you think charge one itself is strong.

[00:05:58] Speaker 05:
I won't concede that, but even if it is, there's problems with all three of the other charges.

[00:06:05] Speaker 05:
And so overall, the CAR factors, I think, dictate that not that there's clearly convincing evidence,

[00:06:13] Speaker 05:
that retaliation was the motive, but there's not clear and convincing evidence that it was not.

[00:06:18] Speaker 05:
And that's the standard.

[00:06:20] Speaker 05:
The problem with two is she charged her with a violation of the Privacy Act and the Rehabilitation Act.

[00:06:28] Speaker 05:
She should know what the Rehabilitation Act requires.

[00:06:32] Speaker 05:
She charges her with these things even though there's not a legitimate reason to do so.

[00:06:38] Speaker 05:
The Rehabilitation Act, you violate that if you disclose private

[00:06:43] Speaker 05:
medical information.

[00:06:44] Speaker 05:
Well, Ms.

[00:06:45] Speaker 05:
Higginbotham herself testified that the information that Ms.

[00:06:49] Speaker 05:
Moritz disclosed was not private.

[00:06:52] Speaker 05:
So it's not a good charge.

[00:06:55] Speaker 04:
Charge three is that the administrative judge acknowledged that.

[00:07:03] Speaker 05:
She did, but she didn't weigh it as against the agency.

[00:07:08] Speaker 05:
OK, so she acknowledges that two and four are bad charges.

[00:07:13] Speaker 05:
But then the case is so strong that it overrides the retaliatory motive.

[00:07:18] Speaker 05:
But I think that charge two itself shows a retaliatory motive because it's so obviously, Higginbotham couldn't honestly believe that Ms.

[00:07:30] Speaker 05:
Morris violated the Rehabilitation Act.

[00:07:33] Speaker 05:
She's an EEO professional.

[00:07:35] Speaker 05:
She should know that Ms.

[00:07:37] Speaker 05:
Morris did not violate the Rehabilitation Act by

[00:07:41] Speaker 05:
writing what everybody already knows.

[00:07:44] Speaker 05:
And at her age.

[00:07:45] Speaker 04:
Didn't she take the position that she didn't know everybody already knew?

[00:07:50] Speaker 05:
No.

[00:07:50] Speaker 05:
At the hearing, she said that she just thought it was inappropriate to say.

[00:07:56] Speaker 05:
She didn't say that she knew it violated the Rehabilitation Act.

[00:08:00] Speaker 05:
There are a number of concessions that Ms.

[00:08:02] Speaker 05:
Higginbotham makes in her testimony that the board actually views in favor of her anyway.

[00:08:11] Speaker 05:
So it is almost like the AJ represents the evidence in a light more favorable to the EPA than Higginbotham's testimony does.

[00:08:24] Speaker 05:
So I encourage you to read her testimony where she kind of concedes a bunch of things.

[00:08:31] Speaker 05:
Charge three, in the OSC report, the Office of Special Counsel Report, they say that charge three is

[00:08:41] Speaker 05:
Not good, because it's the misuse of supervisory authority.

[00:08:46] Speaker 05:
Ms.

[00:08:47] Speaker 05:
Morris says that her subordinate secured a speaker against her wishes and secured the speaker before running it by either her or Ms.

[00:08:57] Speaker 05:
Higginbotham.

[00:08:58] Speaker 05:
And that's why she removed him from the position.

[00:09:00] Speaker 05:
Now, in the OSC report, they say not only does Ms.

[00:09:03] Speaker 05:
Morris say that, but there is a letter accepting the speaker

[00:09:10] Speaker 05:
position from Congressman Queze and Fume saying, I accept.

[00:09:15] Speaker 05:
And that letter is before any of the procedures that are supposed to take place take place.

[00:09:21] Speaker 05:
We don't have that letter.

[00:09:22] Speaker 05:
But I don't think the fact that we don't have that letter should be construed against us, because the agency's in the best position to have that letter and to produce it.

[00:09:34] Speaker 05:
The OSC report indicates that they saw the letter.

[00:09:38] Speaker 05:
And I don't know why that should be disregarded, because the OSC report is an official report.

[00:09:44] Speaker 05:
They reviewed the evidence.

[00:09:46] Speaker 05:
They saw a letter when, at the time, there were only two speakers under consideration.

[00:09:53] Speaker 05:
The rules required there be three.

[00:09:55] Speaker 05:
And Ms.

[00:09:56] Speaker 05:
Morris was leaning towards then-mayor Cory Booker.

[00:10:00] Speaker 05:
So for him to confirm Kweze Mfume is

[00:10:06] Speaker 05:
his insubordination, but because he went and complained to Ms.

[00:10:11] Speaker 05:
Higginbotham about being removed, she took his side over Ms.

[00:10:16] Speaker 05:
Morris's side.

[00:10:17] Speaker 03:
Well, the business about going to Ms.

[00:10:22] Speaker 03:
Higginbotham and complaining was, I take it, at least one of the reasons that Ms.

[00:10:27] Speaker 03:
Morris was unhappy with the subordinate, right?

[00:10:32] Speaker 05:
No.

[00:10:33] Speaker 05:
Wasn't?

[00:10:34] Speaker 05:
No.

[00:10:36] Speaker 05:
That's what the other side says.

[00:10:37] Speaker 05:
What we say is Ms.

[00:10:39] Speaker 05:
Morris was upset that he, well, he wasn't working with his co-coordinator, Elise Wright, and he was, he secured a speaker without doing a procurement requirements, like getting permission, because Cueze and Fume was more expensive than Cory Booker.

[00:10:56] Speaker 03:
I don't remember the precise language that the AJ used on this, but I thought the AJ made a finding to the effect that Ms.

[00:11:09] Speaker 03:
Morris was upset that the employee had gone to consult with Ms.

[00:11:15] Speaker 03:
Higginbotham.

[00:11:17] Speaker 05:
She may have made that finding against the evidence of Ms.

[00:11:22] Speaker 05:
Morris's testimony

[00:11:23] Speaker 05:
in the letter cited by the OSC that that's what Ms.

[00:11:26] Speaker 05:
Morris was upset about.

[00:11:28] Speaker 05:
Ms.

[00:11:28] Speaker 05:
Higginbotham says Mr. King said that that's why that happened, but Mr. King did not testify at the hearing.

[00:11:37] Speaker 01:
Am I correct that the failure to follow the MD 715 reports, that that implicated the entire agency?

[00:11:48] Speaker 05:
Yes.

[00:11:49] Speaker 05:
And what Ms.

[00:11:51] Speaker 05:
Morris says in her email.

[00:11:53] Speaker 01:
Do you know whether there's been a similar situation like that?

[00:11:58] Speaker 01:
Do you have any cases where the protected disclosure involved in abuse of authority or any of those elements implicated the entire agency, tinkered everybody?

[00:12:18] Speaker 05:
where the... Well, it's not the entire EPA.

[00:12:24] Speaker 05:
It's the entire... Yeah, the Office of Civil Rights.

[00:12:31] Speaker 05:
So Ms.

[00:12:31] Speaker 05:
Higginbotham is the director.

[00:12:33] Speaker 05:
Ms.

[00:12:33] Speaker 05:
Morris contributed heavily to writing the report, and then Ms.

[00:12:38] Speaker 01:
Higginbotham... The failure to file those reports affected only the Office of Civil Rights.

[00:12:46] Speaker 01:
I thought it also implicated the entire agency as a whole.

[00:12:51] Speaker 01:
It's the agency's responsibility to follow the reports, and then the Office of Civil Rights is the office that's delegated to follow the reports and come follow the information.

[00:13:04] Speaker 01:
And they failed to do that.

[00:13:07] Speaker 05:
I mean, one of the factors that the AJ cites

[00:13:13] Speaker 05:
is that I think it's the associate administrator, she says, talk to Ms.

[00:13:17] Speaker 05:
Higginbotham, and that strengthens her retaliatory motive.

[00:13:21] Speaker 05:
She talked to her about the administrative judge's decision.

[00:13:33] Speaker 05:
She mentions that, I don't think it's the administrator, but I think the associate administrator had a talking to with her.

[00:13:42] Speaker 01:
Okay, that's all right.

[00:13:47] Speaker 01:
You're into your rebuttal time.

[00:13:49] Speaker 05:
Okay, I apologize.

[00:13:51] Speaker 05:
I thought that was my whole time.

[00:13:52] Speaker 05:
I just want to also emphasize that the Greenspan case is the most similar of all the cases I found.

[00:13:59] Speaker 03:
I'm sorry, which is it?

[00:14:00] Speaker 05:
Greenspan versus Veterans Administration.

[00:14:03] Speaker 05:
He wasn't so nice either when he was disclosing the incompetence of the director.

[00:14:09] Speaker 05:
He publicly, in a public setting, called out the director of the VA for incompetence.

[00:14:18] Speaker 05:
And they said the same thing, that it wasn't very nice.

[00:14:22] Speaker 01:
OK.

[00:14:23] Speaker 01:
Let's hear from the other side.

[00:14:43] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:14:46] Speaker 00:
In this appeal, Ms.

[00:14:46] Speaker 00:
Morris presents challenges to two of the board's findings.

[00:14:51] Speaker 00:
However, as we discussed in our briefing, these challenges are nothing more than disagreements with the board's determinations concerning the weighing of evidence and the credibility of witness testimony.

[00:15:05] Speaker 00:
And these disagreements are an insufficient basis to disturb the board's findings.

[00:15:11] Speaker 00:
Additionally, Ms.

[00:15:12] Speaker 00:
Morris advances in an argument that this court should apply an incorrect or a heightened standard of review in this case.

[00:15:22] Speaker 00:
Now, to be sure, everyone agrees that the standard below was clear in convincing evidence.

[00:15:29] Speaker 00:
However, this court is still conducting a substantial evidence review, which means that the consideration is, would a reasonable fact finder

[00:15:41] Speaker 00:
have found clear and convincing evidence in this case.

[00:15:45] Speaker 00:
And I think the evidence here clearly demonstrates that a reasonable fact finder could.

[00:15:52] Speaker 00:
Specifically, when looking at the evidence that the board relied on, we've been discussing the different charges here, Judge Bryson's already referred to the December 2009 emails as documentary evidence

[00:16:10] Speaker 00:
that demonstrated Ms.

[00:16:14] Speaker 00:
Morris's conduct and why she was charged with what she was charged with, specifically the December 11, 2009 email.

[00:16:26] Speaker 00:
While it did disclose the failure to file the MD 715 reports, the tone and content of the email goes far beyond this protective disclosure.

[00:16:39] Speaker 00:
She accuses Ms.

[00:16:40] Speaker 00:
Higginbotham of attempting to execute a personal agenda.

[00:16:44] Speaker 00:
She accuses her of fabricating things and then making things up, calls her and other employees incompetent.

[00:16:52] Speaker 00:
She alleges that the Office of Civil Rights was run as though it were a kindergarten.

[00:16:58] Speaker 00:
And these types of statements are far outside and independent of the protected disclosure.

[00:17:06] Speaker 04:
And that's exactly what the board found.

[00:17:09] Speaker 04:
Is it pertinent here that Ms.

[00:17:11] Speaker 04:
Morris, on higher occasions, had been asked to be civil or had been instructed to be civil in her communications with her fellow co-workers?

[00:17:21] Speaker 04:
Is that what creates the insupportive nation?

[00:17:26] Speaker 00:
I would actually answer that in two parts.

[00:17:28] Speaker 00:
I think it's pertinent, but I don't think that in and of itself is necessarily dispositive.

[00:17:33] Speaker 00:
The board, I believe it was the ALJ, specifically referenced

[00:17:38] Speaker 00:
that earlier instruction.

[00:17:40] Speaker 00:
It was in March 2009 where Ms.

[00:17:43] Speaker 00:
Higginbotham had specifically instructed Ms.

[00:17:47] Speaker 00:
Morris to behave civilly and professionally in her conduct.

[00:17:53] Speaker 00:
But I think it's reasonable to look at what's going on here that even without that instruction,

[00:18:01] Speaker 00:
this type of conduct is clearly insubordinate.

[00:18:05] Speaker 00:
I think that instruction just heightens the fact of what was going on here.

[00:18:11] Speaker 00:
And as to looking at the charges, there's a couple points I'd like to make here.

[00:18:17] Speaker 00:
First of all, this is an IRA appeal.

[00:18:21] Speaker 00:
So neither the board nor this court is reviewing the removal action itself.

[00:18:28] Speaker 00:
We're simply looking at

[00:18:31] Speaker 00:
whether or not the agency would have taken this action in spite of the protected disclosure, which is a different question.

[00:18:39] Speaker 04:
You do have to look at the strength of the evidence on the charges, right?

[00:18:44] Speaker 04:
And I know that it doesn't have to be strong.

[00:18:48] Speaker 04:
That's not the requirement, that there be strong evidence.

[00:18:50] Speaker 04:
But it's a weighing of the strength of the evidence, right?

[00:18:54] Speaker 00:
It is a weighing of the evidence, your honor, but the weighing of the evidence is the board's responsibility.

[00:18:59] Speaker 00:
And that's exactly what the board did here.

[00:19:01] Speaker 00:
And it considered the evidence concerning charge four.

[00:19:06] Speaker 00:
The board specifically discusses that and says, yes, we acknowledge that charge four contains a retaliatory intent.

[00:19:15] Speaker 00:
But it weighed that finding against what it determined was the non-retaliatory intent of the other charges.

[00:19:23] Speaker 00:
Now, granted charge two, I think the board took a little bit more nuanced view.

[00:19:29] Speaker 00:
It said that there's no retaliatory intent here, because this is the charge about Ms.

[00:19:37] Speaker 00:
Morris disclosing something that was allegedly confidential about another employee.

[00:19:42] Speaker 03:
This is the illness of the employee.

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

[00:19:46] Speaker 00:
And ultimately, what the board said was that,

[00:19:50] Speaker 00:
There's no retaliatory intent there, right?

[00:19:52] Speaker 00:
It has nothing to do with these MD-715 disclosures, but that the evidence was weak and therefore it essentially removed it because it's saying, well, it's not helping the government, but there's no retaliatory intent there.

[00:20:07] Speaker 00:
So primarily what we're looking at is charges one and charge three.

[00:20:12] Speaker 00:
both of which the board has cited to extensive evidence supporting its determinations on those charges.

[00:20:23] Speaker 02:
Now as to Charge 3, what do you think the crux of the board's finding on Charge 3?

[00:20:33] Speaker 00:
So the crux of the board's finding there, as I understand it, is that what Ms.

[00:20:45] Speaker 00:
Higginbotham took issue with Ms.

[00:20:57] Speaker 00:
Morris's instruction to her employee

[00:21:01] Speaker 00:
to not come talk to her, Ms.

[00:21:02] Speaker 00:
Higginbotham.

[00:21:04] Speaker 00:
There was this process where, again, it was the speaker for a special event, and the employee didn't follow the procurement process and was reassigned.

[00:21:13] Speaker 00:
He complained to Ms.

[00:21:15] Speaker 00:
Higginbotham.

[00:21:15] Speaker 00:
They essentially jumped the chain and was reprimanded for that by Ms.

[00:21:21] Speaker 00:
Morris.

[00:21:22] Speaker 00:
So what Ms.

[00:21:22] Speaker 00:
Higginbotham took issue with there

[00:21:25] Speaker 00:
was the instruction that Ms.

[00:21:28] Speaker 00:
Morris's employees were not allowed to speak to Ms.

[00:21:32] Speaker 00:
Higginbotham.

[00:21:33] Speaker 00:
And that's my understanding of charge free, which again, none of that has anything to do with the protected disclosure, and that's what the board found.

[00:21:44] Speaker 00:
So again, I think that as we detailed in our briefing, for all the charges and all the specifications,

[00:21:54] Speaker 00:
the board goes through and analyzes all of the evidence.

[00:21:58] Speaker 00:
This isn't a case where

[00:22:00] Speaker 00:
There's an allegation that there's missing evidence or that something should have been considered and wasn't.

[00:22:08] Speaker 00:
The allegations that Ms.

[00:22:11] Speaker 00:
Morris is bringing in this appeal are purely focused at the board's weighing of evidence and credibility determinations.

[00:22:21] Speaker 00:
And repeatedly, this court has stated that those types of determinations are the purview of the board.

[00:22:32] Speaker 00:
If the court has no further questions, I would respectfully request that this court affirm the determination.

[00:22:38] Speaker 00:
Thank you.

[00:22:40] Speaker 01:
We thank you, sir.

[00:22:45] Speaker 05:
In Ms.

[00:22:45] Speaker 05:
Morris's December 11th email, which my friend on the other side said is evidence supporting charge one, yes, she accuses Ms.

[00:22:58] Speaker 05:
Hagenbotham

[00:22:59] Speaker 05:
of trying to execute a personal agenda, of trying to cover up incompetence in managing the office like a kindergarten.

[00:23:07] Speaker 05:
Maybe it's worded a little rudely, but it is still rooted in the protected disclosure.

[00:23:13] Speaker 05:
Because she then says, I now understand why you have refused to approve the MD-17, 715 reports to be submitted to E.

[00:23:24] Speaker 05:
EEOC and have kept the administrator, so that answers the other question, in non-compliance for your own ends.

[00:23:32] Speaker 05:
So she is accusing her kind of a fraud that you're withholding those reports to cover up all of your mismanagement and all of the things that are going on.

[00:23:45] Speaker 05:
So the obnoxious and rude things that counsel points out that she said in the two emails

[00:23:52] Speaker 05:
are all in support of her protective disclosures.

[00:23:55] Speaker 03:
Not all, right?

[00:23:57] Speaker 03:
You say they were all in support of the protective disclosures.

[00:24:01] Speaker 03:
How about her attacks on the other employees?

[00:24:04] Speaker 03:
X sleeps at his desk all day.

[00:24:07] Speaker 03:
Y plays video games the whole day.

[00:24:09] Speaker 03:
I mean, those have nothing to do with the 715.

[00:24:13] Speaker 05:
Well, they have something to do with Ms.

[00:24:15] Speaker 05:
Higginbotham mismanaging the office and trying to cover up that mismanagement by not submitting the 715.

[00:24:21] Speaker 03:
That seems to me something to stretch.

[00:24:24] Speaker 03:
OK.

[00:24:25] Speaker 05:
I don't think it's a distraction.

[00:24:28] Speaker 05:
that Ms.

[00:24:29] Speaker 05:
Morris is more generally complaining about her mismanagement of the office, and that is in the OSC report.

[00:24:36] Speaker 05:
There's a footnote dropped in the OSC report that indicates that all of these things contribute to the mismanagement of the office, and that essentially Ms.

[00:24:47] Speaker 05:
Morris is accusing Ms.

[00:24:48] Speaker 05:
Higginbotham of mismanagement and incompetence.

[00:24:52] Speaker 05:
There's really not

[00:24:53] Speaker 05:
a nice way to say any of that.

[00:24:55] Speaker 05:
So that's why I think it's important that we look at the Greenspan case, where he also accused his boss of incompetence.

[00:25:05] Speaker 05:
And there is missing evidence here.

[00:25:08] Speaker 05:
The infume letter accepting the speakership is missing, and evidence of other employees who have been disciplined

[00:25:16] Speaker 05:
for being rude or not being civil is missing.

[00:25:21] Speaker 05:
I'm sure there are other employees in the EPA who have been rude and uncivil who probably got like a letter of recommend or something, but we don't know that because

[00:25:31] Speaker 05:
They produce no evidence in support of CAR factor three.

[00:25:37] Speaker 03:
You referred a couple of times to the Greenspan case.

[00:25:40] Speaker 03:
I don't think you cited that in your brief.

[00:25:42] Speaker 03:
And I've seen the case, but I don't remember what the case is if you have the site.

[00:25:47] Speaker 05:
It's in our reply brief extensively.

[00:25:50] Speaker 05:
It's also in the OSC report.

[00:25:54] Speaker 05:
I can give you the site.

[00:25:55] Speaker 05:
I have it here.

[00:25:56] Speaker 05:
It's 464.

[00:26:01] Speaker 05:
F-third, 1297.

[00:26:03] Speaker 03:
Oh, I didn't see it in the table of cases in your reply brief, but maybe it's there.

[00:26:13] Speaker 05:
Did we forget that?

[00:26:14] Speaker 05:
Oh, you're right.

[00:26:17] Speaker 05:
It's not in the table of cases.

[00:26:24] Speaker 05:
That might be one that I found after the briefs, but it's in the OSC report, and it is

[00:26:30] Speaker 05:
completely on point, the doctor there.

[00:26:36] Speaker 05:
No, it's not in the table of cases for the petitioner's brief.

[00:26:38] Speaker 05:
I apologize, Your Honors.

[00:26:39] Speaker 05:
I've been focusing on that case.

[00:26:41] Speaker 05:
Well, we have it now.

[00:26:43] Speaker 05:
So you have it now.

[00:26:46] Speaker 05:
But I also did want to point out, counsel said there's no missing evidence or evidence that wasn't considered.

[00:26:50] Speaker 05:
And it was not considered that there are no comparators.

[00:26:54] Speaker 05:
And I think that would be important evidence

[00:26:59] Speaker 05:
that the agency would be in possession of and would want to show, except that it may likely show that people were not disciplined as heavily as Ms.

[00:27:09] Speaker 05:
Morris was.

[00:27:11] Speaker 05:
Ms.

[00:27:12] Speaker 05:
Morris was very upset about the MD 715 reports and the mismanagement of the office.

[00:27:18] Speaker 05:
And she did think that Ms.

[00:27:21] Speaker 05:
Higginbotham was doing all that to cover up her personal agenda.

[00:27:25] Speaker 05:
She did believe that.

[00:27:26] Speaker 05:
There's really not a nice way to say that.

[00:27:29] Speaker 05:
Greenspan does say that that's it.

[00:27:32] Speaker 05:
That is part and parcel of a protected disclosure.

[00:27:34] Speaker 05:
It's going to be obnoxious.

[00:27:37] Speaker 03:
Well, it seems to me the biggest problem is not so much what she said, but saying it to the entire group.

[00:27:47] Speaker 03:
That's what troubles me.

[00:27:49] Speaker 05:
That's why it's a disclosure.

[00:27:51] Speaker 03:
Well, but why not give it to the

[00:27:55] Speaker 03:
uh... inspector general of the agency, something like that.

[00:27:59] Speaker 05:
She did go to the inspector general.

[00:28:00] Speaker 03:
Did she?

[00:28:00] Speaker 03:
All right.

[00:28:01] Speaker 03:
But if she did, then she's made a disclosure in that fashion.

[00:28:05] Speaker 03:
Why does she need to have an email that's spread throughout the office?

[00:28:09] Speaker 03:
It just strikes me as being above and beyond, basically just inventing.

[00:28:15] Speaker 05:
She's agitating for what she thinks is really egregious abuse of authority and wrong.

[00:28:25] Speaker 05:
the MD 715 reports two years they didn't go in to the EEOC and you know that was like her main job was producing these reports and making sure that the agency was following the EEOC guidelines and they she thinks that Ms.

[00:28:45] Speaker 01:
Higginbath... When you say agency you're talking about the EPA right?

[00:28:50] Speaker 01:
Or just the office?

[00:28:51] Speaker 05:
The EEO office.

[00:28:52] Speaker 05:
Well, if the EEO office isn't doing its job of making sure that, you know, anti-discrimination rules and regulations and laws are followed, I do think that, you know, the whole agency's implicated.

[00:29:07] Speaker 03:
Did anything come of her report to the Inspector General?

[00:29:12] Speaker 03:
You say she had reported to the Inspector General.

[00:29:14] Speaker 05:
Yeah.

[00:29:15] Speaker 05:
I think she reported anonymously.

[00:29:17] Speaker 05:
I don't think anything came of it.

[00:29:19] Speaker 05:
But I know that they submitted MV-715 reports in later years.

[00:29:25] Speaker 01:
OK.

[00:29:26] Speaker 01:
All right.

[00:29:28] Speaker 01:
We thank you for your argument.

[00:29:29] Speaker 01:
We thank all the parties for their argument.