[00:00:48] Speaker 03:
Mr. Stutter, when are you ready?

[00:00:53] Speaker 02:
May it please the court.

[00:00:55] Speaker 02:
This appeal is about whether a reasonable employee is expected to remain on the job after his supervisor assaults him and threatens him with future violence, and the agency fails to fix the situation.

[00:01:06] Speaker 02:
At this stage of the proceedings, we take Mr. Henley's allegations as fact.

[00:01:10] Speaker 02:
And accordingly, on March 30, 2011, Henley was confronted by his direct supervisor, Dennis Ball.

[00:01:19] Speaker 02:
Watt told him, and I quote, your father went to prison for killing your brother.

[00:01:23] Speaker 02:
Too bad he got the wrong one.

[00:01:26] Speaker 02:
He should have got you.

[00:01:28] Speaker 02:
Watt then offered his hand in a fake apology.

[00:01:31] Speaker 02:
And once he had secured Mr. Henley's hand, he further threatened him.

[00:01:34] Speaker 02:
We're going to get this fixed real soon, and then you'll be gone.

[00:01:39] Speaker 02:
It's unthinkable that an employee of the United States government should be treated this way.

[00:01:44] Speaker 02:
And no reasonable person would remain on the job unless the agency fixed the situation.

[00:01:49] Speaker 02:
But as Mr. Henley alleged here, the agency failed to fix it.

[00:01:53] Speaker 02:
Although he told the center director, Walter West, on the same day what had happened, no action was taken against Mr. Bott.

[00:02:01] Speaker 04:
Didn't the agency separate the two gentlemen and say, for each of your protection or whatever, you're going to work from remote locations or something?

[00:02:13] Speaker 04:
When you say no action was taken, I feel like maybe I'm using this case in another case.

[00:02:19] Speaker 02:
No, you're correct that Mr. Henley was.

[00:02:21] Speaker 04:
I thought some action was taken to protect Mr. Henley from any possible further incident related to this man.

[00:02:29] Speaker 02:
Yes, there was some action taken.

[00:02:31] Speaker 02:
Mr. Henley was placed on administrative leave.

[00:02:34] Speaker 02:
At first, he was told that... Continue to get paid?

[00:02:36] Speaker 02:
He did continue to get paid.

[00:02:38] Speaker 02:
And he was told he would remain on administrative leave until an investigation had concluded.

[00:02:42] Speaker 02:
However, while he was still employed at the agency, there was no meaningful investigation that took place.

[00:02:50] Speaker 04:
For example, the investigation... But he still had a job, and he was still continuing to get paid, and he was put in a scenario where he was not being threatened by this man.

[00:02:59] Speaker 04:
So didn't the agency take some steps?

[00:03:02] Speaker 02:
It took some steps, but it didn't fix the situation.

[00:03:05] Speaker 02:
Because if you look back on the history between Mr. West and Mr. Henley, Mr. West just plain didn't like him.

[00:03:12] Speaker 02:
He had taken actions against him in the past, notably two of Mr. Henley's direct supervisors.

[00:03:18] Speaker 02:
So to be clear,

[00:03:19] Speaker 02:
Mr. West is in charge of the center.

[00:03:21] Speaker 02:
He supervises the academic manager.

[00:03:23] Speaker 04:
How long was he on administrative leave?

[00:03:25] Speaker 04:
Because you said, and then they didn't do the investigation they promised to do while he was on leave.

[00:03:30] Speaker 04:
How long was he on leave for while they failed to do that investigation?

[00:03:35] Speaker 02:
Well, he was on administrative leave until April 14th.

[00:03:40] Speaker 02:
So that was about a little bit more than two weeks.

[00:03:42] Speaker 04:
Okay, so wait.

[00:03:43] Speaker 04:
So they put him on administratively while they're going to the investigation.

[00:03:46] Speaker 04:
And your claim is, but they didn't do what they said they were going to do.

[00:03:49] Speaker 04:
I mean, this is the government.

[00:03:52] Speaker 04:
Two weeks doesn't seem like a really long time.

[00:03:55] Speaker 03:
I understand.

[00:03:56] Speaker 03:
He came back to work and he just worked in a different session.

[00:03:58] Speaker 03:
So they did allow him to work from home, right?

[00:04:02] Speaker 03:
I mean, after the administrative leave ran out, they allowed him to work from home.

[00:04:07] Speaker 02:
Well, they recalled him to the job center.

[00:04:09] Speaker 02:
And he was supposed to work at the job center.

[00:04:10] Speaker 02:
But he was not put back into his duties

[00:04:12] Speaker 02:
He was placed in the same building where Walter West could keep a close eye on him at all times.

[00:04:18] Speaker 02:
But the complaint here is not that they didn't investigate in the two weeks.

[00:04:22] Speaker 02:
It's when he came back to the center, it was clear to him that no investigation was underway.

[00:04:26] Speaker 02:
And I believe it was May 9th.

[00:04:28] Speaker 02:
So over a month, or May 11th, he reached out to upper management because he realized Walter West wasn't going to provide any meaningful investigation.

[00:04:40] Speaker 02:
And I think our position is that when someone is subjected to this sort of horrible treatment, they are entitled to an investigation.

[00:04:47] Speaker 02:
And it was reasonable for Mr. Henley to infer, particularly from his past interactions with Walter West, that no investigation was ever going to take place.

[00:04:57] Speaker 02:
And in fact, the investigation form that the government relies on, that EEOC report, and Mr. West's testimony to investigators, supports the idea that no investigation took place while Mr. Henley was in his employment.

[00:05:10] Speaker 04:
Even though on April 4th of 2011 an investigation was initiated, is it that, I don't understand, are you just saying it was formally initiated but it wasn't actually occurring?

[00:05:21] Speaker 04:
I thought the record showed that an investigation began on April 4th.

[00:05:34] Speaker 04:
But correct me if I'm wrong, if I don't have the facts right, I definitely want to be told.

[00:05:39] Speaker 02:
Page 40 of the appendix indicates that his complaint was referred for investigation on November 8.

[00:05:46] Speaker 02:
So that would be about six to seven months after he had initially reported the incident.

[00:05:51] Speaker 02:
And to be clear, a large part of this case is the prior history between Mr. West and Mr. Henley.

[00:05:58] Speaker 02:
Mr. Henley alleged that at West's direction, two of his direct supervisors had issued letters critical of his job performance and, in fact, threatened performance improvement plans.

[00:06:08] Speaker 02:
which we noted is a major step toward termination, and that was without ever observing his teaching methods.

[00:06:14] Speaker 02:
It's a reasonable inference for him to draw that Mr. West was trying to push him out.

[00:06:19] Speaker 03:
I understand what you're saying, and I appreciate what you're saying, but we get a lot of these cases, and the cases are because someone has been pushed out, and then they file an appeal, and they claim either it's because of discriminatory reasons or retaliatory reasons.

[00:06:36] Speaker 03:
But in this instance, you're saying because he thought he was going to be pushed out unfairly, therefore this is a constructive discharge.

[00:06:46] Speaker 02:
It's not because he thought he was going to be pushed out unfairly, Your Honor.

[00:06:49] Speaker 02:
It's because he had a hostile working environment.

[00:06:53] Speaker 02:
We're relying primarily on the Heining case and then the Bates case, which stands for the idea that a pattern of harassment and or retaliation gives rise to intolerable working conditions really under

[00:07:04] Speaker 02:
two situations or two sets of facts.

[00:07:07] Speaker 02:
The first in Heining is what I'd refer to as kind of a death by 1,000 cuts, where there are repeated actions taken against someone to undermine their employment.

[00:07:16] Speaker 02:
It leads so that they cannot possibly get a meaningful chance of promotion.

[00:07:20] Speaker 02:
They can't get fair reviews.

[00:07:22] Speaker 02:
And at a certain point, a reasonable person says, you know what?

[00:07:24] Speaker 02:
I've had enough.

[00:07:26] Speaker 02:
And the basis here is that the agency has to go through proper procedures to terminate someone, and they can't terminate someone through improper acts.

[00:07:33] Speaker 02:
And that would be the intolerable working conditions in Heining.

[00:07:36] Speaker 02:
We believe this case bears a great deal of similarity to Heining, and in fact is Heining plus, because you have this long pattern of harassment and or retaliation undermining his employment, but also an assault.

[00:07:51] Speaker 02:
And we also think it bears some similarity to Bates.

[00:07:54] Speaker 02:
Bates is the idea that one sufficiently severe incident can trigger an involuntary resignation.

[00:08:00] Speaker 03:
In Bates, that's the time period between which

[00:08:04] Speaker 03:
the alleged assault occurred and the time he died.

[00:08:08] Speaker 02:
A little bit under two months, but there is an explanation for that.

[00:08:12] Speaker 02:
As the government has noted and the board noted, there is a requirement that an employee act reasonably, that they do not jump to conclusions, that they give basically the agency a chance to fix things.

[00:08:26] Speaker 02:
And that's what he did.

[00:08:27] Speaker 02:
So after the incident, he remained in his job.

[00:08:32] Speaker 02:
He asked for an investigation.

[00:08:33] Speaker 02:
When it became clear to him that Walter West wasn't going to provide an investigation, he reached out to the director of the Forest Service, who told him that the national director of Job Corps would investigate his claim and be in touch with him on May 23, no later than May 23.

[00:08:48] Speaker 02:
Mr. Henley waited till that day.

[00:08:50] Speaker 02:
And when he didn't get the communication,

[00:08:53] Speaker 02:
he realized he wasn't going to get the proper relief.

[00:08:56] Speaker 02:
He had two choices, which was to resign or to await the next retaliatory act.

[00:09:01] Speaker 02:
And Heining is clear he was not required to sit there and wait for the next retaliation.

[00:09:05] Speaker 02:
And that's particularly true here, where there had been use of physical force against him.

[00:09:09] Speaker 03:
Can I ask you an aside?

[00:09:11] Speaker 03:
I mean, listening to your argument and certainly reading the briefs, including the gray brief, it looks like assuming this were treated as a constructive discharge,

[00:09:19] Speaker 03:
Your allegations would all go to the basis for this, where it's improper because it was retaliation because your client wasn't liked or had this bad antagonistic relationship with Mr. West, or if that's his name.

[00:09:34] Speaker 03:
What about, as I understood the record, you've got an EEO allegation here.

[00:09:40] Speaker 03:
This is sort of a mixed case allegation, to the extent it's a discharge case at all.

[00:09:45] Speaker 03:
It's a mixed case, right?

[00:09:48] Speaker 02:
I think that's right, but if you look at the base case, for example, in the base case, the board had found that there was no evidence that she was discriminated based on her sex.

[00:10:00] Speaker 02:
But nevertheless, they found in her favor, because it was a constructive discharge, that there was a hostile working environment that caused her to resign.

[00:10:11] Speaker 02:
And that's not permissible.

[00:10:12] Speaker 02:
The agency can't create the situation that causes them to resign.

[00:10:15] Speaker 02:
And so she was entitled to relief in the form of, I'm not exactly sure at this point, but she was, I think, ordered reinstated and ordered back pay.

[00:10:25] Speaker 02:
So it would be a similar type of claim to embates.

[00:10:28] Speaker 03:
And we think that the proper... So your view of the law is that it necessarily follows.

[00:10:34] Speaker 03:
If you were to prevail on the fact that this was a constructive discharge, then you would prevail on the fact that it was improper and your client should get reinstated.

[00:10:44] Speaker 02:
That's right, but this decision wouldn't be deciding that.

[00:10:46] Speaker 02:
He's asking for a very modest relief in that he just wants the board to decide this on the facts.

[00:10:52] Speaker 03:
So we are solely at... To decide what, though?

[00:10:54] Speaker 03:
That's what I'm asking about.

[00:10:55] Speaker 02:
To decide whether it was an actual... Yeah, to decide whether it was an intolerable working condition.

[00:11:00] Speaker 03:
Okay, so then he's got a discharge.

[00:11:02] Speaker 03:
Wait, so, yeah.

[00:11:03] Speaker 03:
So he's got a discharge and what?

[00:11:04] Speaker 03:
A reinstatement because he was forced to resign because of intolerable working conditions?

[00:11:10] Speaker 02:
That's correct.

[00:11:13] Speaker 03:
And what happens when he goes back?

[00:11:15] Speaker 03:
I mean, you're saying he left because it was so intolerable and they hadn't taken any action against the other person.

[00:11:21] Speaker 03:
What's...

[00:11:22] Speaker 03:
Is he assuming that that would be corrected necessarily?

[00:11:26] Speaker 02:
Well, I should correct that and say I'm not sure exactly what relief he would ask for on remand.

[00:11:30] Speaker 02:
I know that's one version of relief available to him.

[00:11:32] Speaker 02:
But the board has broad discretion in the relief that it grants.

[00:11:36] Speaker 02:
So it may be that he doesn't seek reinstatement, that he seeks just back pay, or something similar to that.

[00:11:43] Speaker 02:
But at the least, we would suggest that his allegations are serious.

[00:11:48] Speaker 02:
And they deserve to be decided.

[00:11:51] Speaker 01:
The Chief Judge asked you about this being a mixed case.

[00:11:54] Speaker 01:
It started out that way.

[00:11:56] Speaker 01:
You alleged discrimination on the basis of disability and age, right?

[00:12:02] Speaker 02:
That's what he had initially alleged to EEOC.

[00:12:04] Speaker 01:
And the Supreme Court granted CERD in a case from the D.C.

[00:12:10] Speaker 01:
Circuit on mixed cases in January.

[00:12:14] Speaker 01:
Did you know about it?

[00:12:17] Speaker 01:
The Perry case?

[00:12:18] Speaker 01:
I'm not familiar with that, no.

[00:12:20] Speaker 01:
Well, I was going to ask whether you thought this case ought to be held until that case is decided, or if it has any effect on this case.

[00:12:29] Speaker 01:
I don't think so.

[00:12:30] Speaker 01:
But since you don't know about the case, we don't want you to speculate.

[00:12:34] Speaker 02:
Yeah, I don't want to speculate on that.

[00:12:36] Speaker 02:
My last point would just be that one other reason not to affirm and to remand to the board is the potential message that this sends.

[00:12:47] Speaker 02:
Because Mr. Henley is really asking this court

[00:12:50] Speaker 02:
to do my allegations establish intolerable working conditions?

[00:12:54] Speaker 02:
And to hold that they don't is to necessarily say that his allegations were only tolerable working conditions.

[00:13:00] Speaker 02:
And it's beyond dispute that his allegations included what would constitute assault and battery at common law, and perhaps simple battery under a criminal statute.

[00:13:08] Speaker 02:
We think those are serious allegations, and when those are made, the government has to promptly investigate.

[00:13:13] Speaker 02:
It can't wait.

[00:13:13] Speaker 03:
Am I wrong, or is the legal standard applied here really whether or not he had no other alternative but to resign?

[00:13:23] Speaker 03:
So we would have to conclude that.

[00:13:26] Speaker 03:
You know, he exercised all efforts to complain about this, to tell his supervisors, to do all of this stuff.

[00:13:33] Speaker 03:
And he was absolutely reasonably satisfied that nothing was ever going to change and that this would continue.

[00:13:41] Speaker 02:
Well, I would amend that to say he has to make all reasonable efforts.

[00:13:44] Speaker 02:
And I would also point out that that was the same standard, the one that you just recited.

[00:13:48] Speaker 02:
It's the same standard applied by Heining and Bates.

[00:13:50] Speaker 02:
And I think the best way to address this case is to compare it fact by fact.

[00:13:54] Speaker 02:
with Heining, Heining in particular, but also with Bates.

[00:13:59] Speaker 03:
Heining was, just to be sure, because that's an MSBB case.

[00:14:02] Speaker 03:
That's not one of our cases, right?

[00:14:04] Speaker 02:
That's right.

[00:14:04] Speaker 02:
Those are both board cases.

[00:14:06] Speaker 02:
That's right.

[00:14:08] Speaker 02:
But I would compare it side by side with Heining.

[00:14:10] Speaker 02:
And I think that you'll find that our case is Heining Plus, which is Heining Plus, the assault and battery alligator.

[00:14:16] Speaker 03:
Why don't you reserve the remainder of your battle and we'll hear from the government.

[00:14:18] Speaker 03:
All right.

[00:14:19] Speaker 03:
Thank you, Your Honors.

[00:14:27] Speaker 05:
Good morning.

[00:14:28] Speaker 00:
Are you familiar with that Perry case I asked about?

[00:14:30] Speaker 05:
I am, Your Honor.

[00:14:32] Speaker 00:
Is this case properly in our court?

[00:14:34] Speaker 05:
Well, this case is properly in this court under Conforto and under Perry as the DC Circuit decided it.

[00:14:41] Speaker 05:
I think the question you raised is whether this case should be stayed based on the grant of certiorari.

[00:14:46] Speaker 05:
We don't really have an opinion on that, but I don't think it would be improper since it does affect whether this court has jurisdiction.

[00:14:53] Speaker 05:
If the Supreme Court were to reverse Perry,

[00:14:55] Speaker 05:
which would also implicitly reverse the Conforto case that talks about how you, where you appeal mixed cases from the MSPB, then presumably that case would actually be properly in the district court as a mixed case rather than here.

[00:15:07] Speaker 03:
So we would be compelled to transfer?

[00:15:09] Speaker 05:
So you would be compelled to transfer, and actually the inquiry in the district court would be entirely different.

[00:15:14] Speaker 05:
It would be on the facts.

[00:15:15] Speaker 05:
He would have a trial then as opposed to assessing whether the board had jurisdiction.

[00:15:23] Speaker 03:
But it would be a trial on the facts, but the initial inquiry would be what, whether or not he was constructively discharged?

[00:15:32] Speaker 05:
I believe so.

[00:15:33] Speaker 05:
I mean, I think a mix.

[00:15:34] Speaker 05:
So something that can afford to impair cases, we would consider this, as they stand before the Supreme Court rules, we would consider this more of a potential mixed case, as in he raised discrimination allegations, but they do not attach until the board finds that it has jurisdiction, which obviously didn't occur here.

[00:15:50] Speaker 05:
In a true mixed case, after the board finds it has jurisdiction, it adjudicates all the issues, including the discrimination claims.

[00:15:58] Speaker 05:
Those are then appealed to the district court, and they get a trial de novo on the fact issues.

[00:16:03] Speaker 05:
And I think the legal issues are reviewed under a deferential standard similar to what's done in this court.

[00:16:10] Speaker 03:
I'm sorry.

[00:16:10] Speaker 03:
Can I just be clear?

[00:16:11] Speaker 03:
Yes.

[00:16:11] Speaker 03:
So if this was sent to the district court, it would be still an appeal of the MSPB's

[00:16:18] Speaker 03:
dismissal for lack of jurisdiction.

[00:16:20] Speaker 03:
So would it not be the threshold issue before the district court as to whether or not there's... Well, I think the situation has never occurred because the jurisdiction of dismissals have never appeared to have foregone to district court.

[00:16:31] Speaker 05:
They've always come to this court.

[00:16:33] Speaker 03:
I know, but we're talking about a scenario in which the Supreme Court reverses period.

[00:16:36] Speaker 05:
If they reverse period, then I would assume it would follow the similar course to what the Supreme Court originally held in the case called Klopner in 2012 in which they held that

[00:16:45] Speaker 05:
Even though the MSPB dismissed the case on procedural grounds, it went off to district court just like a case that was decided on the merits and would be heard under 5 USC 7702, which specifies a trial de novo on the discrimination claims.

[00:16:59] Speaker 04:
And so it would be, so the trial, if it went forward in district court, would go forward entirely on the merits, and it would sort of skip right over this issue that we're being asked to decide.

[00:17:07] Speaker 05:
I think that's right.

[00:17:08] Speaker 05:
I mean, I can't speak for the district court or for what exactly the Supreme Court would hold.

[00:17:11] Speaker 05:
Doesn't that suggest that the,

[00:17:14] Speaker 04:
Certainly, it seems to me Mr. Henley would have a very strong basis for wanting us to stay this case.

[00:17:21] Speaker 04:
Because if Perry comes out the other way by the Supreme Court, he gets to jump right over this jurisdiction issue and gets to automatically, under the government's view of what could happen, present all of his facts.

[00:17:33] Speaker 05:
He's not my client, so I can't speak for him.

[00:17:35] Speaker 05:
But I would assume he would find that to be in his interest.

[00:17:39] Speaker 05:
The MSPB, I think that's a reasonable thing to do.

[00:17:42] Speaker 05:
We take no position on whether you should do it.

[00:17:44] Speaker 05:
We certainly wouldn't oppose it if that's what he wanted to do.

[00:17:49] Speaker 04:
So you wouldn't oppose it if he wanted to stay?

[00:17:50] Speaker 05:
We would not oppose it.

[00:17:51] Speaker 04:
You might want to address that number, by the way.

[00:17:55] Speaker 05:
Perry's been accepted.

[00:17:57] Speaker 05:
It's going to be argued, I believe, next month.

[00:18:00] Speaker 05:
That could really change the landscape of how decisions are appealed.

[00:18:03] Speaker 04:
Well, it's going to be argued next month, and we'll have a decision before June.

[00:18:05] Speaker 04:
So this is not a long-term proposition.

[00:18:07] Speaker 04:
Staying in this case, we're only talking about staying in a couple months.

[00:18:10] Speaker 04:
Exactly.

[00:18:12] Speaker 03:
Can we get to the merits, well, the merits of the jurisdictional question, that is, which is your friend described what he described in his brief and what's in the record about this incident with his supervisor.

[00:18:25] Speaker 03:
Why isn't that sufficient?

[00:18:27] Speaker 03:
I mean, wouldn't a reasonable person take that as, oh my god, that's outrageous.

[00:18:31] Speaker 03:
I'm not comfortable.

[00:18:32] Speaker 03:
This is no way a person should have to confront these risks.

[00:18:37] Speaker 05:
I'm assuming there's a lot of incidents with supervisors, so I'm assuming you're referring to the handshake.

[00:18:41] Speaker 03:
Yes, yes.

[00:18:42] Speaker 03:
And the comment about his father.

[00:18:44] Speaker 05:
And the comment about his father.

[00:18:47] Speaker 05:
I mean, I don't think anybody would argue that these were acceptable things for supervisor to be doing, but the standard is very demanding.

[00:18:54] Speaker 05:
It demands that the employee have no alternative but to resign.

[00:18:58] Speaker 03:
Well, he reported it.

[00:19:01] Speaker 03:
He did report it.

[00:19:02] Speaker 03:
Because he should.

[00:19:03] Speaker 03:
He was given some indication that he might get some satisfaction or some investigation or some action may be taken.

[00:19:09] Speaker 03:
And that reasonably appeared to be not forthcoming in the reasonable foreseeable future.

[00:19:16] Speaker 03:
Is that not right?

[00:19:17] Speaker 05:
Well, I would respectfully disagree with that because in fact they took immediate action.

[00:19:20] Speaker 05:
They separated them.

[00:19:22] Speaker 05:
They put him on administrative leave for approximately two weeks.

[00:19:24] Speaker 05:
As you noted,

[00:19:26] Speaker 05:
It was just more noted he was paid during that time.

[00:19:29] Speaker 05:
They then started giving him assignments, so he wasn't just sitting around twiddling his thumbs.

[00:19:32] Speaker 05:
He was actually doing work.

[00:19:34] Speaker 05:
He didn't like the assignments he was given, but he was given things to do.

[00:19:38] Speaker 05:
And he, in fact, didn't initiate an EEO complaint on this issue until May.

[00:19:44] Speaker 03:
Yeah, but things usually happen in the reverse, which is if someone allegedly threatens someone, it's that person

[00:19:53] Speaker 03:
who's put on administrative leave and whose regular duties change while the investigation is going on.

[00:20:00] Speaker 05:
Well, I think that depends on the facts and the circumstances.

[00:20:08] Speaker 05:
And since there have been no factual findings here, I don't know that it's appropriate to second guess the agency's decision, for example.

[00:20:14] Speaker 03:
But aren't we supposed to view this all facts as he stated them?

[00:20:19] Speaker 03:
Isn't that the procedural posture where it is?

[00:20:21] Speaker 05:
All facts are, as he stated them, for what he did, but the supervisor, for example, denied it, denied making the statement, denied threatening him, denied doing any of these things.

[00:20:30] Speaker 05:
And so while the board didn't make a factual finding, I think that perhaps goes to the reasonableness of what the agency chose to do in terms of separating them.

[00:20:39] Speaker 05:
He says that's unreasonable, but that's a conclusory statement.

[00:20:44] Speaker 05:
And it's also the case.

[00:20:47] Speaker 04:
Wouldn't it help you answer Judge Perth's question if you referred to the fact that when Mr. Henley was asked what he wanted in an email, he responded that he thinks the safest course of action would be for either himself or Mr. Vought to be put on administrative leave.

[00:21:02] Speaker 04:
And so the agency actually gave him exactly the relief that he thought and argued was

[00:21:08] Speaker 04:
what he thought was appropriate in the circumstance.

[00:21:11] Speaker 05:
Exactly.

[00:21:11] Speaker 04:
I was going to say the next photo.

[00:21:14] Speaker 04:
Because it's kind of hard for me to imagine how putting him on administrative leave

[00:21:19] Speaker 04:
somehow creates a hostile work environment and or forces him to resign when it's exactly what he asked them to do?

[00:21:27] Speaker 05:
Well, I would agree with that.

[00:21:28] Speaker 05:
I'm not sure it creates one anyway, but I think it certainly does not when it is one of the courses of action that he himself suggested and presented as appropriate, and they chose to do that.

[00:21:44] Speaker 05:
And I think the remaining things that happened in May, where he was working out of his apartment.

[00:21:50] Speaker 05:
He couldn't get a good internet signal, so he worked around town.

[00:21:53] Speaker 05:
Then he went home without authorization to Michigan.

[00:21:56] Speaker 05:
He characterizes them as efforts to entrap him into doing things he shouldn't do.

[00:22:02] Speaker 05:
But the fact is, these are all appropriate things that his supervisors required.

[00:22:07] Speaker 05:
They required him to do some work.

[00:22:08] Speaker 05:
They required him to do it.

[00:22:10] Speaker 05:
relatively close to the facility.

[00:22:12] Speaker 05:
They required him not to just disappear off to his house 10 hours away without prior authorization.

[00:22:17] Speaker 05:
And they required him to come back when they discovered he had disappeared and was AWOL.

[00:22:22] Speaker 05:
And if he disagreed that these were appropriate, he had means of redress.

[00:22:26] Speaker 05:
He could have filed a grievance on the AWOL claim.

[00:22:28] Speaker 05:
He eventually did, in fact, file an EEO complaint.

[00:22:33] Speaker 05:
But he didn't actually file that until about two weeks before he ultimately resigned.

[00:22:37] Speaker 05:
And so I think his claim that the proper procedures weren't followed and he didn't get processed is simply inaccurate and unreasonable because the agency was following these procedures and he is the one who chose not to wait for the outcome in a reasonable amount of time.

[00:22:55] Speaker 05:
The court has no further questions.

[00:22:57] Speaker 05:
Thank you.

[00:23:11] Speaker 02:
If the government is offering a stay, then we would be glad to accept it.

[00:23:15] Speaker 04:
No, they didn't offer a stay.

[00:23:16] Speaker 04:
They said they wouldn't oppose your request for one.

[00:23:19] Speaker 02:
Well, yes, we are requesting a stay for that opinion.

[00:23:25] Speaker 02:
And I want to make two other points.

[00:23:26] Speaker 02:
The first is, regardless whether the government was following procedures in investigating this matter, and I don't believe that they did.

[00:23:37] Speaker 02:
I don't believe there's any evidence showing that they were following procedures.

[00:23:40] Speaker 02:
I would still say that the

[00:23:41] Speaker 02:
The law should not conform to the agency's procedures.

[00:23:45] Speaker 02:
The agency should conform its procedures to the law.

[00:23:49] Speaker 02:
And then I want to make one other point about the administrative leave issue.

[00:23:54] Speaker 02:
Mr. Henley disputed that that's what he requested.

[00:23:57] Speaker 02:
In Mr. Henley's allegations, what he's suggesting is that that was his last resort, that when Mr. West failed to take the actions that Mr. Henley expected of him, that is placing bought on administrative leave

[00:24:10] Speaker 02:
This was, well, at the very least, you can't leave me around this guy.

[00:24:13] Speaker 02:
And the initial board decision actually recognizes this.

[00:24:18] Speaker 02:
First, I should give the site for his allegations.

[00:24:20] Speaker 02:
That would be Appendix 114, where he's saying that that was not his first choice, nor was it the first choice he communicated to Mr. West.

[00:24:28] Speaker 02:
And also, at Appendix 16, in footnote two, the board had acknowledged that it's not clear from the record whether Mr. West or the appellant

[00:24:38] Speaker 02:
recommended that the appellant be placed on administrative leave, showing that should not be a basis in this court's decision.

[00:24:45] Speaker 03:
Thank you.

[00:24:45] Speaker 03:
We thank both parties in the case of support.

[00:24:50] Speaker 03:
That concludes our proceedings.