[00:00:35] Speaker 04:
OK, the next case is number 161444, Evans against the Office of Compliance.

[00:00:43] Speaker 04:
Mr. Wagner.

[00:00:48] Speaker 02:
Good morning.

[00:00:49] Speaker 02:
May it please the court.

[00:00:52] Speaker 02:
Mr. Evans would submit that there are three reasons why this court should reverse, three primary reasons.

[00:01:01] Speaker 02:
The first reason is that the record below

[00:01:04] Speaker 02:
is not based on substantial evidence.

[00:01:08] Speaker 02:
Rather, the record below indicates that all of the witnesses who testified before the hearing officer relied on hearsay and double hearsay.

[00:01:21] Speaker 02:
They had no personal knowledge of the facts about which they testified.

[00:01:30] Speaker 02:
Second reason.

[00:01:32] Speaker 00:
Do the rules of evidence apply in the proceedings before the lower body?

[00:01:38] Speaker 02:
Yes, Your Honor, we would submit that it does.

[00:01:41] Speaker 02:
And certainly, if the record is supposed to be based on substantial evidence, this court has stated in several cases, Doe versus the United States, 132 Fed 3rd, 1430 in regard

[00:02:01] Speaker 02:
guard side, what have you, that a record based on hearsay and rumor cannot support substantial evidence.

[00:02:12] Speaker 02:
And we would submit that, in this case, that something reliable had to be put forward for the court to rule on.

[00:02:24] Speaker 02:
This is especially true in a scenario in which

[00:02:30] Speaker 02:
None of the witnesses who provided statements filed complaints against Sergeant Evans.

[00:02:38] Speaker 02:
None.

[00:02:39] Speaker 02:
And in the case of Francine Baxter, who was the alleged target of the sexy librarian comment, she refused to cooperate with the union and did not file a complaint and only came forward with her remarks

[00:03:01] Speaker 02:
in a compelled interview.

[00:03:03] Speaker 02:
Now, one of the things that stands out in this particular case is that prior to the hearing officer hearing this case, the disciplinary review board heard the same case and reached almost diametrically opposed findings.

[00:03:27] Speaker 00:
Can I ask you something?

[00:03:29] Speaker 00:
Even though the folks to whom these comments were made did not actually file complaints themselves, are you trying to suggest to me that these are appropriate workplace comments?

[00:03:41] Speaker 00:
And isn't it possible that a supervisor could conclude that these sort of comments are inappropriate in the workplace, even if they're not offending the individual to whom they're made?

[00:03:51] Speaker 02:
Well, Your Honor, we would submit that propriety is not the standard for

[00:03:57] Speaker 02:
anti-harassment and discrimination claims.

[00:04:01] Speaker 02:
As the court is aware, the EEOC and the various courts at EC Circuit and even this court have held that offhand comments, crude remarks, what have you, isolated

[00:04:19] Speaker 02:
do not rise to the level of being a violation of anti-harassment and discrimination claims.

[00:04:27] Speaker 04:
But could it actually be a factor in the hostile environment?

[00:04:33] Speaker 04:
Could it not?

[00:04:34] Speaker 02:
Assuming for a moment that the conduct was pervasive and was continuous, it could be.

[00:04:46] Speaker 02:
But what we have here

[00:04:47] Speaker 02:
It's not continuous comments.

[00:04:49] Speaker 02:
We have our one-time comments, isolated comments, that did not rise to the level that anybody complained about.

[00:04:58] Speaker 02:
The Capitol Police, the disciplinary review officer, argued to the disciplinary review board that one-time comments could violate the Capitol Police anti-harassment and discrimination policy.

[00:05:17] Speaker 02:
The DRB rejected that as a basis for filing a charge against an officer.

[00:05:29] Speaker 02:
That finding by these five lay officers or officials of the Disciplinary Review Board, that finding is consistent with the rulers of this court and the DC Circuit, where

[00:05:46] Speaker 02:
And I would submit the rest of the federal judiciary, that no one has held that a one-time comment could violate anti-harassment and discrimination policy.

[00:06:03] Speaker 02:
And that is what we have here.

[00:06:05] Speaker 02:
Moreover, none of the underlying claims that were filed by the

[00:06:12] Speaker 02:
that were filed in support of the report of investigation, none of the claimants filed claims.

[00:06:24] Speaker 02:
And if you examine the four primary charges against Sergeant Evans, the first one was he said to Officer

[00:06:39] Speaker 02:
Baxter, I didn't know you wore eyeglasses.

[00:06:42] Speaker 02:
She says, I wear them for reading.

[00:06:44] Speaker 02:
He says, oh, wow, they make you look like a sexy librarian.

[00:06:47] Speaker 02:
She was not offended.

[00:06:48] Speaker 02:
She did not file a complaint.

[00:06:51] Speaker 02:
And the reason that that charge came to the forefront was that Sergeant Shudders went out looking for the claims.

[00:07:05] Speaker 02:
The second charge against

[00:07:08] Speaker 02:
Officer Sergeant Evans was that he made a comment about chocolate milk.

[00:07:14] Speaker 02:
No one filed a claim on that.

[00:07:17] Speaker 02:
Rather, as he was explaining to Sergeant Shudders about how everything occurred, he says, and I said to Officer Mutin and Officer Kovacs that they must like chocolate milk when they say that they dated black women and had babies by it.

[00:07:38] Speaker 02:
The third comment allegedly made regarding Sergeant Mendoza passing by.

[00:07:47] Speaker 02:
Captain Bollinger said that nobody could agree as to what Sergeant Evans said, so that what you have is an inherently unreliable hearsay statement that is being used as a basis for

[00:08:05] Speaker 02:
for the charges.

[00:08:08] Speaker 02:
And finally, with regard to officer Merritt's alleged dating practices, dislike of black men, Sergeant Evans was concerned that this woman carries a gun.

[00:08:26] Speaker 02:
And if she dislikes black men,

[00:08:33] Speaker 02:
that could pose a problem if she used that gun.

[00:08:36] Speaker 02:
I'm not sure if it's not in the record below.

[00:08:39] Speaker 02:
And I'm not sure that any member of this court is familiar with the controversy that is now going through the communities regarding the shooting of unknown black men by police officers.

[00:08:57] Speaker 02:
This is what motivated

[00:08:59] Speaker 02:
Sergeant Evans, he says, look here, this woman is openly and notoriously against black men.

[00:09:06] Speaker 02:
And something has to be done about that.

[00:09:09] Speaker 02:
There's nothing in the record below that refutes that claim.

[00:09:13] Speaker 02:
Was she a black woman?

[00:09:14] Speaker 02:
Huh?

[00:09:14] Speaker 02:
Was she a black woman?

[00:09:15] Speaker 02:
She was a black woman.

[00:09:17] Speaker 02:
But she had, and this is really noteworthy is because she hated, she expressed, hey, I don't like black men.

[00:09:26] Speaker 02:
There's a problem with black men.

[00:09:28] Speaker 02:
In fact,

[00:09:29] Speaker 02:
One of the allegations related to a joke that she told at roll call.

[00:09:38] Speaker 02:
In fact, that was one of the charges that the disciplinary review board rejected.

[00:09:44] Speaker 02:
She asked the question at roll call, what is the difference between a park bench and a black man?

[00:09:52] Speaker 02:
A black man cannot support a family.

[00:09:55] Speaker 02:
That was the joke that triggered

[00:09:57] Speaker 02:
a discussion by Sergeant Evans with the other two officials, which was overheard by another lady who, at the union's insistence, came forward with a statement saying that, hey, Sergeant Evans says this about this lady.

[00:10:15] Speaker 02:
Now, one of the things that we asserted below was that

[00:10:23] Speaker 02:
If the court would permit me to drink a little water, my tongue is sticking to it.

[00:10:28] Speaker 02:
Please.

[00:10:48] Speaker 02:
One of the things that we have asserted is that this case

[00:10:54] Speaker 02:
has monumental disparate treatment involving Sergeant Evans.

[00:11:00] Speaker 02:
The first one is we invite the court's attention to the Blankato incident where Sergeant Blankato hugged, kissed, and rubbed the head of Officer Zelensky, told him that he had sex with his wife, and he did this over, as according to Captain Bollinger, he did this over a period of years.

[00:11:24] Speaker 02:
Officer Hunter complains, says, look here, this is what this man is doing, and this is offensive.

[00:11:30] Speaker 02:
He was doing this in front of the entire shift, H1 shift.

[00:11:35] Speaker 02:
Nothing happened to Sergeant Ben Carter.

[00:11:39] Speaker 02:
Nevertheless, what happened here?

[00:11:42] Speaker 02:
No one complained about Sergeant Evans.

[00:11:46] Speaker 02:
Yet, not only did they demote him, but

[00:11:54] Speaker 02:
Unlike in Sergeant Blancada's case, they went looking for additional charges when the original 25 to 30 claims against Sergeant Evans proved unfounded, unsupported.

[00:12:12] Speaker 01:
Was there evidence of disparate treatment because of race?

[00:12:17] Speaker 02:
Well, Your Honor, Sergeant Blancada is white.

[00:12:21] Speaker 02:
Sergeant Evans was black.

[00:12:27] Speaker 02:
In Sergeant Evans' case, they had a record number of claims against Sergeant Evans.

[00:12:35] Speaker 02:
In fact, Deputy General Counsel DiBiase said that he had never seen a case like this before, with this many charges.

[00:12:47] Speaker 02:
And Captain Bollinger said that

[00:12:50] Speaker 02:
When charges are proven to be unfounded based on complaints, they don't go looking for additional charges.

[00:12:57] Speaker 02:
That is what she said.

[00:12:59] Speaker 02:
And what happened in this case?

[00:13:01] Speaker 02:
Sergeant Shudders, when everything proved to be unfounded, he went looking for additional charges.

[00:13:08] Speaker 02:
I invite the court's attention to allegation number 15 in the report of investigation.

[00:13:14] Speaker 02:
Allegation number 15 was,

[00:13:16] Speaker 02:
After they had found nothing supportive of the charges against Sergeant Evans, what Sergeant Shudders did was go looking for claims.

[00:13:28] Speaker 02:
He had heard that 10 officers had transferred from the shift because of something that Sergeant Evans had done.

[00:13:36] Speaker 02:
It turned out that none of the, they interviewed 10 officers and none of the charges proved to be found.

[00:13:44] Speaker 02:
And so they had to move on.

[00:13:46] Speaker 02:
And when all of the charges were over with and had been investigated and none proved to be found, they went out looking for the charge that resulted in Officer Baxter being forced to give testimony.

[00:14:03] Speaker 02:
The DRB found Sergeant Evans not guilty of that charge.

[00:14:07] Speaker 02:
They found him not guilty of the charge involving the choke at the roll call because it was old.

[00:14:15] Speaker 02:
got around to disputing, I mean, the demotion, he relied on a charge that had been handled administratively.

[00:14:27] Speaker 02:
And one more thing I'd like to save the remainder of my time.

[00:14:32] Speaker 02:
The union was told not to go soliciting charges when they were soliciting charges involving white officials.

[00:14:41] Speaker 02:
The union was told, don't do it.

[00:14:43] Speaker 02:
They don't do this.

[00:14:45] Speaker 02:
And the directives are found on page 260 to 265 of the appendix.

[00:14:51] Speaker 02:
But when the union decided to do something with regard to Sergeant Evans, the Capitol police turned a blind eye to it.

[00:15:02] Speaker 02:
They allowed it to go on.

[00:15:03] Speaker 02:
They allowed them to search for additional claims and additional charges.

[00:15:08] Speaker 02:
That's another example of disparate treatment.

[00:15:11] Speaker 02:
And it's in that search that they came up with

[00:15:15] Speaker 02:
The sexy librarian, they came up with a chocolate milk charge that no one complained about.

[00:15:21] Speaker 02:
That's how they came up with the so-called tapping of Sergeant Mendoza that she didn't hear.

[00:15:27] Speaker 02:
And no one could agree about what he said, which made the hearsay even more unreliable.

[00:15:35] Speaker 02:
And finally, with regard to the report of investigation that was submitted that they relied on,

[00:15:43] Speaker 02:
We were able to show at the hearing that Sergeant Shudders lied in his report.

[00:15:49] Speaker 02:
He said that the cell phone text had been lost when he was before the DRB.

[00:15:58] Speaker 02:
He said it was lost, but it was found.

[00:16:01] Speaker 02:
And finally, he also said that Sergeant Evans used the word F and P on the cell phones.

[00:16:11] Speaker 02:
That was not found.

[00:16:13] Speaker 02:
That was not there.

[00:16:14] Speaker 02:
If the court would give me a few seconds.

[00:16:17] Speaker 04:
OK.

[00:16:18] Speaker 04:
Thank you.

[00:16:18] Speaker 04:
Thank you, Mr. Wagner.

[00:16:19] Speaker 04:
Mr. Eulman.

[00:16:32] Speaker 03:
May it please the court.

[00:16:33] Speaker 03:
I think the facts in this case are fairly simple.

[00:16:39] Speaker 03:
A hearing officer heard the testimony in this case.

[00:16:42] Speaker 03:
He heard the testimony of Chief Dine and all of the officers that were involved in making the demotion and the suspension decisions, and listened to all that evidence, and listened to Mr. Evans' evidence, and believed the testimony offered by the chief of police and the officers that investigated the charges, and believed them when they said that race or retaliation had nothing to do

[00:17:09] Speaker 03:
with the decisions that were made.

[00:17:11] Speaker 03:
And when we look at the case at this stage, we're looking at, is there substantial evidence to support those findings?

[00:17:19] Speaker 03:
And the question that really Mr. Evans doesn't answer is, why isn't that substantial evidence?

[00:17:24] Speaker 00:
Well, you know what?

[00:17:25] Speaker 00:
People sometimes don't even know when they have a latent prejudice.

[00:17:31] Speaker 00:
I once had somebody.

[00:17:32] Speaker 00:
I'm going to tell you a funny story about my daughter.

[00:17:34] Speaker 00:
My daughter is the second highest in her grade in math.

[00:17:37] Speaker 00:
The first highest is a little girl.

[00:17:39] Speaker 00:
And when I told this story to a friend, he said, I didn't know she went to an all-girls school.

[00:17:44] Speaker 00:
And I said, well, goodness sakes, she doesn't.

[00:17:46] Speaker 00:
Suddenly it hit me.

[00:17:47] Speaker 00:
He thought because the top two students in the class in math were both girls, she must go to an all-girls school.

[00:17:54] Speaker 00:
He's not the least bit discriminatory.

[00:17:56] Speaker 00:
He's a really nice person.

[00:17:57] Speaker 00:
He's extremely open-minded.

[00:18:00] Speaker 00:
And he was horrified when he realized where his brain had gone and why.

[00:18:04] Speaker 00:
So my question to you is, there may be testimony that these people didn't base their decision on race, but how do you reconcile that with what seems to be very, very, very strong evidence that there was a white officer in the same unit, the same Capitol Police unit, who was making what appeared to be consistent and far worse comments in the workplace on a regular basis, and that he was not disciplined in any fashion?

[00:18:30] Speaker 00:
How do you reconcile that?

[00:18:31] Speaker 03:
And I think the evidence was

[00:18:33] Speaker 03:
of that officer was developed very carefully in the record, and the hearing officer really addressed that very elaborately in her decision.

[00:18:41] Speaker 03:
What she said is that the OPR, at least the management of the Capitol Police, were not aware of how severe those incidents were.

[00:18:51] Speaker 03:
I mean, they did not become aware until the testimony was offered during this hearing.

[00:18:56] Speaker 03:
What they heard from Zaleskas, who was the alleged victim,

[00:19:00] Speaker 03:
at the time they initially investigated that incident is that this was not a big deal.

[00:19:04] Speaker 03:
That the two of them had been friends for 10 years and that they kind of had this behavior back and forth.

[00:19:12] Speaker 00:
Yeah, but it's my understanding that these statements, the record demonstrates undisputedly, were made at the beginning of roll call when everyone was present and lots of people would have been hearing them.

[00:19:22] Speaker 00:
And so whether

[00:19:24] Speaker 00:
The guy who the statements were made to was somehow okay with them and I find it hard to believe he truly was.

[00:19:29] Speaker 00:
But even if he was okay with them, everyone else was hearing these statements being made and it was creating a work environment where, I mean, you know, I don't like the comments Mr. Evans made and I can understand why you decided to look into them and investigate them.

[00:19:44] Speaker 00:
But clearly, this is a problematic workplace.

[00:19:47] Speaker 00:
I'll tell you another story about my kids, right?

[00:19:49] Speaker 00:
If we have a rule at home, you can't take any cookies from the cookie jar before dinner.

[00:19:53] Speaker 00:
But if I never enforce that rule, and if everybody's allowed to eat cookies whenever they want, and then all of a sudden I come down and I bring the hammer down on one child when I catch him eating cookies after he just watched me let 15 people eat cookies without any consequences,

[00:20:09] Speaker 00:
it starts to become a little bit problematic.

[00:20:12] Speaker 00:
I can understand why you want to clean up this unit, because based on the evidence in this record, there are some real problems in this workplace that need to be addressed.

[00:20:22] Speaker 00:
But is it possible that this particular penalty is too harsh under the circumstances of this case, given the entire record that was created?

[00:20:30] Speaker 03:
Well, just remember the procedural posture.

[00:20:33] Speaker 03:
I don't represent the Capitol Police.

[00:20:34] Speaker 03:
I represent the Office of Compliance, which was the board that

[00:20:38] Speaker 03:
that actually heard the first appeal that was made.

[00:20:41] Speaker 03:
And they judged the evidence based on the substantial evidence standard as well.

[00:20:46] Speaker 03:
And when they have a hearing officer who's heard all the evidence and decided, I believe what they told me.

[00:20:52] Speaker 03:
And she was there.

[00:20:54] Speaker 03:
The hearing officer heard the testimony of the people.

[00:20:58] Speaker 03:
scope of review is very limited.

[00:21:00] Speaker 03:
I mean, they're not going to second-guess the hearing officer.

[00:21:01] Speaker 00:
And you're going to tell me my scope of review is likewise extremely limited, and that even if I think that under the circumstances the penalty's harsh, that that's not my standard of review, that I don't get to make that decision.

[00:21:13] Speaker 03:
That's right.

[00:21:14] Speaker 03:
And the other thing that you have to bear in mind, the evidence, when we're talking about disrep treatment, what we're saying, it can potentially create an inference of discrimination, but it isn't an offense in and of itself.

[00:21:25] Speaker 03:
I mean, you still have to show

[00:21:27] Speaker 03:
But the reason behind the adverse employment action is because of race.

[00:21:31] Speaker 03:
And Mr. Evans argues that while there was this inference and that the hearing officer should have made the inference that he wanted them to make, but she was unable to do that.

[00:21:41] Speaker 03:
And when you have just one officer and you have all sorts of different circumstances, the testimony was that there were multiple other officers, both black and white, who were disciplined and were demoted for similar circumstances.

[00:21:54] Speaker 03:
It's not just the one officer you're looking at when you have a large police force and you find one officer.

[00:22:00] Speaker 03:
And the conclusion that you want the fact finder to make that this is a racial-based decision, the fact finder really has to look at all the evidence and listen to what the testimony is and make a decision.

[00:22:11] Speaker 03:
And it's very hard, at least very hard for my board, who I'm representing, for them to second guess what that fact finder is following.

[00:22:17] Speaker 00:
And so to be clear, I understand the legal standard.

[00:22:20] Speaker 00:
It's not just a disparate treatment standard, right?

[00:22:23] Speaker 00:
I would have to conclude that there was no substantial evidence for a finding that his demotion was not based on race.

[00:22:31] Speaker 03:
That's correct.

[00:22:32] Speaker 00:
And that's a really tough statement.

[00:22:34] Speaker 00:
Right.

[00:22:34] Speaker 03:
And he has the burden of persuasion and the burden of proof.

[00:22:37] Speaker 03:
And basically, the hearing officer said, I believe what the police said.

[00:22:43] Speaker 03:
And there were actually seven areas of misconduct which were reduced to five charges.

[00:22:49] Speaker 03:
It wasn't an isolated incident.

[00:22:51] Speaker 03:
I mean, one of them was for a period of a year that he was commenting about the dating habits of one of the sergeants.

[00:22:57] Speaker 03:
And these comments went on and on.

[00:22:59] Speaker 03:
The other thing that distinguished it from the other case was that he had been disciplined before for sexual harassment.

[00:23:06] Speaker 03:
He had received discipline for, I think, using a folder and tapping a female employee on the rear end as she went by.

[00:23:13] Speaker 03:
And that resulted in discipline.

[00:23:16] Speaker 03:
In the police chief's mind, this was a pattern that he wanted.

[00:23:19] Speaker 03:
He did not want his frontline managers to be engaging.

[00:23:22] Speaker 03:
This was not the atmosphere that he wanted in the police force.

[00:23:27] Speaker 00:
What was the range of penalties that were, in fact, available under the circumstances for the allegations that the OPR found and sustained?

[00:23:37] Speaker 03:
Well, it could be everything from a reprimand to discharge.

[00:23:42] Speaker 00:
So he could have been removed.

[00:23:44] Speaker 00:
That's correct.

[00:23:44] Speaker 00:
And yet he was only demoted.

[00:23:45] Speaker 03:
That's correct.

[00:23:46] Speaker 00:
And that likely is because the deciding official took into account his long and good service to the organization.

[00:23:54] Speaker 03:
Is that right?

[00:23:55] Speaker 03:
Precisely.

[00:23:55] Speaker 03:
I mean, if you read Chief Dine's letter, I mean, he says he went through the Douglas Factors and looked at all the factors you would normally consider with an employee and decide that the appropriate penalty was demotion.

[00:24:08] Speaker 03:
Because basically,

[00:24:10] Speaker 03:
And I think the law is quite clear when you're dealing with managers, that you can hold them to a higher standard, that that's a behavior that you just cannot tolerate.

[00:24:20] Speaker 03:
Because they're the alter ego of the company or of the department.

[00:24:24] Speaker 03:
And so they reflect directly on what the department is all about.

[00:24:30] Speaker 03:
So at least in my mind, this is not a difficult case, simply because he's asking the court to make inferences

[00:24:38] Speaker 03:
that the Finder of Factors was not going to make, in light of the direct testimony that she had regarding what the factors were.

[00:24:48] Speaker 04:
Any more questions, more comments?

[00:24:51] Speaker 04:
Thank you, Mr. Yeoman.

[00:24:53] Speaker 04:
We'll restore a couple of minutes for a rebuttal.

[00:24:57] Speaker 04:
Mr. Wagner, if you wish.

[00:25:01] Speaker 02:
Thank you, Your Honor.

[00:25:04] Speaker 02:
A couple of things.

[00:25:05] Speaker 02:
First of all, the Disciplinary Review Board

[00:25:09] Speaker 02:
which heard this case, was told by the disciplinary review officer that this case was one of first impression, that there was never any case like this before the U.S.

[00:25:19] Speaker 02:
Capitol Police.

[00:25:21] Speaker 02:
Deputy General Counsel DiBiase says, this case is unlike anyone else.

[00:25:27] Speaker 02:
I've never seen this many charges leveled against one officer

[00:25:33] Speaker 01:
Yes, but that doesn't necessarily mean that it's wrong.

[00:25:38] Speaker 01:
Maybe the officer did a lot of things wrong.

[00:25:41] Speaker 02:
But when all the charges, roughly 30 charges, proved to be unfounded, Captain Bollinger says that you don't go looking for more charges.

[00:25:51] Speaker 02:
And that is what happened in this case.

[00:25:54] Speaker 02:
He started looking for more charges when they were unable to sustain any of the 30 charges that had been leveled against him.

[00:26:01] Speaker 02:
Again, I invite the court's attention to allegation number 15.

[00:26:06] Speaker 02:
Once the charges were found to be unfounded, they were looking for more.

[00:26:13] Speaker 02:
They interviewed 10 officers.

[00:26:16] Speaker 02:
Did this man say something that was inappropriate to you?

[00:26:18] Speaker 02:
All of them said no.

[00:26:20] Speaker 02:
That's how they came across Officer Baxter.

[00:26:24] Speaker 02:
They went and interviewed five new female officers who might have not filed complaints.

[00:26:30] Speaker 02:
Did he say anything to you?

[00:26:31] Speaker 02:
All of them said no, except Officer Baxter, who said, well, you know, he once told me my eyeglasses made me look like a sexy librarian.

[00:26:41] Speaker 02:
But I wasn't offended by that.

[00:26:44] Speaker 02:
She was not offended.

[00:26:45] Speaker 02:
And the DRB decision stands out in stark contrast.

[00:26:49] Speaker 00:
But none of what you're suggesting is anything that forms a basis for us to reverse.

[00:26:54] Speaker 00:
We don't have the right to reverse just because they investigated him more closely.

[00:27:00] Speaker 00:
You would have to establish that they did all of this because of his race.

[00:27:04] Speaker 02:
Well, Your Honor, that is the only explanation.

[00:27:06] Speaker 00:
I'm not hearing you explain that, though.

[00:27:08] Speaker 02:
Well, if the court will permit me, number one, when you look at the four charges, the four charges have really no basis.

[00:27:19] Speaker 02:
Chocolate milk was never alleged by anybody, but they used that.

[00:27:23] Speaker 02:
Sergeant Shudders decided to include that.

[00:27:25] Speaker 02:
The statement about

[00:27:29] Speaker 02:
Officer Sergeant Mendoza walking by.

[00:27:33] Speaker 02:
Captain Boland just said nobody could agree on what he said, but yet it became a charge.

[00:27:39] Speaker 02:
The chocolate milked a comment.

[00:27:42] Speaker 02:
No one filed a complaint about that, but yet it became a charge.

[00:27:46] Speaker 02:
He told Sergeant Shuttles about that while he was discussing the Mendoza affair.

[00:27:54] Speaker 02:
And once again, Officer Baxter says,

[00:27:57] Speaker 02:
I wasn't offended by being called a sexy librarian.

[00:28:02] Speaker 02:
And when you look at what they did, they told the union, don't go out and solicit new complaints when the complaints involve white officers and white officials.

[00:28:18] Speaker 02:
But when they were trying to find something on

[00:28:22] Speaker 02:
Sergeant Evans, they permitted the Union to go out.

[00:28:25] Speaker 02:
He went to Captain Spokart and said, look here, this is what they're doing to me.

[00:28:31] Speaker 02:
The Union is going out there to listen to complaints.

[00:28:33] Speaker 02:
You told them not to do that.

[00:28:35] Speaker 02:
They said, OK, fine.

[00:28:36] Speaker 02:
We'll go out there.

[00:28:37] Speaker 02:
And most of the charges against him were brought by the Union.

[00:28:41] Speaker 02:
The Capitol Police told not to do that.

[00:28:45] Speaker 02:
And finally.

[00:28:47] Speaker 04:
Please wrap it up.

[00:28:48] Speaker 02:
Yes, Your Honor.

[00:28:49] Speaker 02:
I'm sorry.

[00:28:51] Speaker 02:
With regard to

[00:28:53] Speaker 02:
Officer Zaleski and Captain Sergeant Blankati.

[00:28:59] Speaker 02:
Here was a classic case of this man hugging and kissing Officer Zaleski and telling him he was having sex with his wife.

[00:29:11] Speaker 02:
And this was being done in front of the entire ship.

[00:29:15] Speaker 02:
Did they bother to go out and interview any of the people in that ship to find out if that was

[00:29:22] Speaker 02:
that was true.

[00:29:23] Speaker 02:
Sergeant Evans testified, yeah, it was true.

[00:29:25] Speaker 02:
I saw it myself.

[00:29:27] Speaker 02:
Everybody saw it.

[00:29:29] Speaker 02:
If you look at Officer Zaleski's testimony, he said, yeah, it was done in front of the entire shift.

[00:29:35] Speaker 02:
If they had done, in Sergeant Blankata's case, what they did in this one, going out to look for additional charges, they would have interviewed the people in the House one shift.

[00:29:47] Speaker 02:
And they would have asked, did you see Sergeant Blankata kiss

[00:29:52] Speaker 02:
officer Zalesky on the top of his head to talk about having sex with his wife and rubbing his back.

[00:29:59] Speaker 02:
Did you see that?

[00:30:00] Speaker 02:
They would have found out that there was support for that claim, what have you.

[00:30:06] Speaker 02:
And Captain Bollinger would not have been testifying that there was preponderance of evidence to prove that that offense occurred.

[00:30:16] Speaker 02:
Thank you, Your Honor.

[00:30:16] Speaker 04:
Thank you.

[00:30:17] Speaker 04:
Thank you both.

[00:30:18] Speaker 04:
The case is taken under submission.

[00:30:20] Speaker 04:
That concludes the