[00:00:30] Speaker 04:
Final case this morning is Gail M. Peterson versus the Merit Systems Protection Board 2016-1690.

[00:00:39] Speaker 04:
Mr. Robinson, please.

[00:00:42] Speaker 00:
May I please record?

[00:00:43] Speaker 00:
Morning, Judge Laurie.

[00:00:44] Speaker 00:
Wendell Robinson on behalf of Mrs. Peterson.

[00:00:47] Speaker 00:
Ms.

[00:00:47] Speaker 00:
Peterson is here as president.

[00:00:49] Speaker 00:
To the courts, I'd just like to indicate that I've tried to raise the issues in the law as clearly as I could in the brief itself.

[00:01:00] Speaker 00:
argument here, although I requested 10 minutes, it's certainly not going to be 10 minutes.

[00:01:04] Speaker 00:
But I would just like to bring the court to the single issue that I am requesting the court to do in this case, and that is to accept the imputed knowledge rule here.

[00:01:14] Speaker 00:
Now, the merits of the- Can I ask you a question?

[00:01:17] Speaker 02:
Why didn't you file a reply brief when the government argued that imputed knowledge is not the standard?

[00:01:23] Speaker 02:
Did you even attempt, why didn't you file a reply brief to argue that?

[00:01:28] Speaker 02:
she would satisfy some alternative statement?

[00:01:30] Speaker 00:
Because, Your Honor, I felt that based upon the government's argument, I think one of the arguments they stated was they basically had inherent provision in there to do that.

[00:01:38] Speaker 00:
I felt that I had laid out the argument as clearly and concisely as possible, then the reply was not necessary.

[00:01:44] Speaker 02:
Do you see a distinction between imputed knowledge and constructive knowledge?

[00:01:48] Speaker 00:
I clearly do, Your Honor.

[00:01:50] Speaker 00:
Imputed knowledge means that the knowledge that the decision makers had is imputed

[00:01:58] Speaker 00:
to the person above them and that that person has the knowledge at the same time.

[00:02:02] Speaker 00:
Constructive knowledge means someone has to come in and prove that constructive knowledge has been proven.

[00:02:08] Speaker 00:
Imputed means it's there without any proof for showing that it has been constructively placed on someone.

[00:02:15] Speaker 00:
And in this particular instance, I think the board did not state that Mrs. Peterson did not allege allegations that would substantiate or meet the elements of whistleblower.

[00:02:25] Speaker 00:
The only argument was, is that Mr. Leonard was not made aware of them prior to December 19th, 2013 action.

[00:02:34] Speaker 00:
She said herself that he didn't know.

[00:02:36] Speaker 00:
Well, no, she didn't, that's what the board found.

[00:02:41] Speaker 00:
And they said that even though she stated that Dr. Leonard did not know that, then she cannot say that the actions taken were as a result of knowledge that he had.

[00:02:50] Speaker 00:
I agree with that.

[00:02:52] Speaker 00:
The point I'm making to the court is, is that based upon

[00:02:55] Speaker 00:
The decision makers that were under Dr. Leonard were Nona Scott and Bobby Moore.

[00:03:01] Speaker 00:
These were not individuals that had ministerial tasks.

[00:03:05] Speaker 00:
They were decision makers.

[00:03:06] Speaker 00:
And if you take a look at the decision from a letter from Carol Lerner from the Office of Special Counsel to the President, although it was May of 2015, they basically substantiate the allegations that Mrs. Peterson had made to Mr. Moore and Mrs.

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

[00:03:25] Speaker 00:
And that is that she made allegations.

[00:03:26] Speaker 00:
Some were pretty serious.

[00:03:28] Speaker 00:
And that is that there were a number of complaints that were brought against individuals in the Office of Civil Rights, including Mrs. Scott and Mr. Leonard, that they knew about.

[00:03:39] Speaker 00:
And Carol Leonard had said that those cases had languished for over 180 days.

[00:03:46] Speaker 00:
And Ms.

[00:03:47] Speaker 00:
Peterson had told them that not only had they languished, but some of those cases against those high-level individuals were deleted.

[00:03:55] Speaker 00:
and that even when those cases that weren't deleted that were bought forward, that the processing of those claims were done in violation of the law.

[00:04:05] Speaker 02:
Okay, so I don't think anyone is taking issue with whether or not there are sufficient allegations of whistleblowing activity as it relates to the lower level managers.

[00:04:15] Speaker 02:
But I don't even see any allegation in the record that those managers

[00:04:21] Speaker 02:
induced mister leonard or affected mister leonard's decision-making with respect to the transfer in other words not only was there any allegation that they never told him but there were no allegations that that day somehow got him to do what he did well you know i can understand that and that is exactly why i'm stating the imputed knowledge rule should be employed should be imposed and that is if you have individuals who are below you at assistant secretary level

[00:04:51] Speaker 00:
And this involves complaints not only involving the assistant secretary, but Dr. Leonard himself, that Ms.

[00:04:57] Speaker 00:
Peterson raises to the attention of everyone, that knowledge should be imputed to Dr. Leonard or to the person who takes the action.

[00:05:05] Speaker 00:
I agree with you.

[00:05:06] Speaker 00:
If I had some information to show that, I would make that.

[00:05:09] Speaker 00:
I would not be arguing imputed knowledge rule.

[00:05:12] Speaker 00:
But in this particular situation, what we're saying is knowledge that was held by managers and assistant secretary

[00:05:20] Speaker 00:
who met frequently with Dr. Leonard, that information should be imputed to Dr. Leonard, particularly when that information was adverse, because it implied, and the Office of the Special Counsel in this letter to the President in 2015 substantiated what Ms.

[00:05:36] Speaker 00:
Peterson said.

[00:05:37] Speaker 00:
She said that many of those complaints were against Mr. Leonard, Mrs. Scott.

[00:05:42] Speaker 00:
Some of the complaints were deleted, and that they knew about that information.

[00:05:47] Speaker 00:
What I'm saying is, if you have an assistant secretary that knows about this action, and based upon the complaints and allegations that were made, these were made in July 8, 2013 and March 2013.

[00:06:04] Speaker 00:
And the adverse action took place December 29, 2013 that was relayed to Mrs. Peterson by Assistant Secretary Scott.

[00:06:16] Speaker 00:
What I asked the courts to do, because I couldn't find any precedent with respect to that issue being here, was to adopt maybe some precedent, some other case law.

[00:06:28] Speaker 00:
I cited the negligence theory, which might not be all that, but we don't have any cases at our own point.

[00:06:35] Speaker 00:
And I also said the sexual harassment cases, where in that particular case, information is given to some managers is imputed.

[00:06:43] Speaker 00:
And the reason the court said that was because when you have allegations, and I'm not saying the allegations here are equal to a sexual harassment case.

[00:06:51] Speaker 00:
All I'm saying is the theory behind imputing knowledge in sexual harassment cases was that the allegations are so severe that if someone on that staff knows about it, there's an obligation to take it forward.

[00:07:03] Speaker 00:
And it's imputed if you do not.

[00:07:05] Speaker 00:
Because otherwise, what would happen is the supervisor could say, I never knew about it.

[00:07:10] Speaker 00:
No one told me.

[00:07:12] Speaker 00:
And so what I'm asking this court to do is to impute the knowledge to the person, in this case, Dr. Leonard, that was in the preview of Bobby Scott, Winona Scott and Bobby Moore, because they met frequently.

[00:07:28] Speaker 00:
And all of the information, virtually all information, that Ms.

[00:07:34] Speaker 00:
Peterson stated was substantiated by the Office of Special Counsel in this report and its letter to the president

[00:07:42] Speaker 00:
May of 2015.

[00:07:43] Speaker 00:
I might also add that one of the things that they found was that there was unreasonable responses by the office.

[00:07:53] Speaker 00:
The individuals had been harmed, had never been gotten their redress.

[00:07:58] Speaker 00:
And it recommended that some action be taken so that the individuals who were agreed in harm should have sufficient redress.

[00:08:06] Speaker 00:
And I'm asking for the imputed.

[00:08:07] Speaker 04:
Mr. Robinson, knowledge is a question of fact, right?

[00:08:10] Speaker 00:
I think that's correct, Your Honor.

[00:08:12] Speaker 04:
And we defer greatly to the board with respect to questions of fact.

[00:08:17] Speaker 04:
You're asking us to impute knowledge.

[00:08:21] Speaker 04:
Isn't that also a fact?

[00:08:24] Speaker 04:
And the board didn't find imputed knowledge, so how can we review that?

[00:08:29] Speaker 00:
Well, I think because if you look at what the board said, the board said that they had no evidence that the information was

[00:08:40] Speaker 00:
given to Dr. Leonard.

[00:08:41] Speaker 00:
And what I'm saying is there's no question that the board said, you made these allegations.

[00:08:47] Speaker 00:
They meet the whistleblower criteria.

[00:08:49] Speaker 00:
But you haven't substantiated to us that they got to Dr. Leonard.

[00:08:53] Speaker 00:
And that's why I'm asking the court.

[00:08:55] Speaker 00:
And that's a question of fact.

[00:08:57] Speaker 00:
Well, we know for a fact, Your Honor, that the knowledge was within the purview and knowledge of Winona Scott, Assistant Secretary, was in the facts, were known by Bobby Moore,

[00:09:10] Speaker 00:
And the Office of Special Counsel found that that information was there.

[00:09:14] Speaker 00:
But the decision maker didn't have the knowledge.

[00:09:18] Speaker 00:
The decision maker did not.

[00:09:20] Speaker 00:
That's correct.

[00:09:21] Speaker 04:
And we have no basis to overturn that, given our limited standard of review.

[00:09:27] Speaker 04:
And there wasn't a decision on imputed knowledge that we can review.

[00:09:33] Speaker 00:
Well, you can review it.

[00:09:35] Speaker 00:
If it's arbitrary and capricious, then you find that based upon the

[00:09:39] Speaker 00:
the law and the facts are presented that the decision was rendered when it was unsubstantiated based upon that.

[00:09:45] Speaker 00:
Now, I understand.

[00:09:46] Speaker 02:
Are you asking us to send it back and ask them to apply a different legal standard?

[00:09:52] Speaker 00:
That's correct.

[00:09:53] Speaker 00:
What I'm saying, you should reverse and send it back.

[00:09:55] Speaker 00:
And they should then apply.

[00:09:57] Speaker 00:
Well, what they should do is what the officers of special counsel say it is.

[00:10:02] Speaker 00:
You have to follow the rules that you are supposed to follow when you conduct these activities.

[00:10:08] Speaker 00:
Three things.

[00:10:09] Speaker 00:
First, Mrs. Peterson's complaints were not taken up to Mr. Leonard, although the Assistant Secretary and Mr. Moore, who was the Director of Corporate Services, knew about them.

[00:10:20] Speaker 00:
Second, the complaints that were brought in there, the Office of Special Counsel found were in excess of 180 days.

[00:10:28] Speaker 00:
And they also found, thirdly, that the complaints that were filed against these individuals were deleted.

[00:10:34] Speaker 00:
And I guess fourth is that when they did conduct hearings,

[00:10:38] Speaker 00:
Those hearings were in violation of the laws that the Office of Civil Rights is supposed to conduct.

[00:10:43] Speaker 00:
And so yes, I'm asking you to send it back and tell them to comply with the requirements of the rules that the special counsel said that they had violated and recommended that they should follow whenever they deal with the aggrieved individuals and make the aggrieved individuals whole.

[00:11:00] Speaker 00:
I have nothing else to respond to except if you have questions.

[00:11:02] Speaker 00:
I have a brief period of rebuttal.

[00:11:05] Speaker 04:
We will save the rest of your time for a bottle if you need it.

[00:11:08] Speaker 04:
Thank you, sir.

[00:11:11] Speaker 04:
Ms.

[00:11:11] Speaker 04:
Lederer?

[00:11:18] Speaker 01:
May I please the court?

[00:11:20] Speaker 01:
The MSPB properly found that Petitioner failed to make a non-frivolous allegation that the individual who reassigned her, Dr. Leonard, knew of her whistleblowing activity.

[00:11:28] Speaker 01:
And we point out that it's Petitioner's burden to make that allegation.

[00:11:33] Speaker 02:
Well, they made a finding that

[00:11:35] Speaker 02:
that she didn't allege that he actually knew.

[00:11:39] Speaker 01:
Correct.

[00:11:40] Speaker 02:
But this whole debate about imputed knowledge, constructive knowledge, there was never a finding that there was an insufficient basis upon which to conduct a constructive knowledge analysis, even if you're correct that that's what the law is as opposed to imputed knowledge.

[00:11:54] Speaker 01:
Well, the problem is petitioner actually alleged that he did not know.

[00:11:58] Speaker 02:
But actual knowledge is different from constructive knowledge.

[00:12:01] Speaker 01:
Correct.

[00:12:01] Speaker 01:
So now she's

[00:12:04] Speaker 01:
attempting to allege that you should impute knowledge to him, even though he didn't actually know, which is contradictory.

[00:12:12] Speaker 01:
And also she didn't present that to the judge.

[00:12:16] Speaker 01:
Before the judge, the limited information that she presented was that he did not know.

[00:12:21] Speaker 02:
But wasn't there enough information from which the judge could say that there was allegations that would at least support a constructive

[00:12:32] Speaker 02:
knowledge analysis given how senior these people were that all knew about it?

[00:12:39] Speaker 01:
No, in fact, there was not.

[00:12:43] Speaker 01:
She did not satisfy the constructive knowledge test because she didn't allege that any individuals who knew about it actually influenced the decision.

[00:12:50] Speaker 02:
Right, but did the judge make an analysis of whether she satisfied the constructive knowledge test?

[00:12:56] Speaker 01:
The judge, based on the bare minimal information that the petitioner provided, just found that

[00:13:02] Speaker 01:
she didn't meet the knowledge and timing test.

[00:13:04] Speaker 01:
So she didn't show that the individual who reassigned her, Dr. Leonard, she didn't even allege.

[00:13:11] Speaker 01:
She is not required to prove it at this stage, but she didn't allege that he knew.

[00:13:14] Speaker 01:
And so therefore, she didn't make a non-provost allegation.

[00:13:20] Speaker 01:
So there's no board jurisdiction over that claim.

[00:13:23] Speaker 04:
Does the board deal with the question of imputed knowledge?

[00:13:30] Speaker 01:
We argue that there's no reason to force the board to adopt a new test when the board already has ways to effectively impute knowledge to managers.

[00:13:39] Speaker 01:
For example, in the Carney case, the board imputed knowledge.

[00:13:44] Speaker 04:
But you didn't answer the question.

[00:13:46] Speaker 04:
Did the board consider whether there should be imputed knowledge?

[00:13:51] Speaker 01:
The board did not consider that because the petitioner did not allege that before the vote.

[00:13:55] Speaker 04:
In other words, that's a new argument, which

[00:13:58] Speaker 04:
is not properly before us.

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

[00:14:02] Speaker 04:
We're reviewing court.

[00:14:04] Speaker 04:
We review the decision of the board.

[00:14:06] Speaker 01:
Correct, yes.

[00:14:07] Speaker 01:
Unfortunately, much of the information that Petitioner has submitted to this court was never submitted to the judge.

[00:14:13] Speaker 01:
So based on what the judge had to go on, which was mainly OSCE's letter closing its investigation, the judge was left to sort of infer what arguments Petitioner was actually making.

[00:14:24] Speaker 01:
So based on that,

[00:14:28] Speaker 01:
The judge found that she was alleging that he did not have knowledge.

[00:14:34] Speaker 01:
And so the test failed, the jurisdictional test fails at that point because it's her burden to make the non-fervous allegation.

[00:14:41] Speaker 03:
What are the circumstances that the board standard for, I'm not sure it matters whether you want to call it constructive or imputed, but knowledge might be available.

[00:14:58] Speaker 01:
Well, as I was saying before, in the Carney case, the board imputed knowledge to a manager where the petitioner or the appellant had alleged that management had been scrutinizing his activities.

[00:15:12] Speaker 01:
So they imputed knowledge of his representational activities based on that allegation.

[00:15:19] Speaker 03:
What work is being done by imputed there as opposed to just it's a fair evidentiary inference?

[00:15:29] Speaker 03:
They were watching everything he did that you can infer that they knew that one.

[00:15:34] Speaker 03:
I had taken that imputed or even constructive has some legal character that says we're going to say you knew, even though as a simple factual matter, we know you didn't.

[00:15:49] Speaker 01:
I'm not aware of any case where the board has found that as a factual matter, they didn't know an imputed knowledge to them as the test that petitioner wants the board to now adopt.

[00:15:59] Speaker 02:
Well, the circumstances that I previously identified are exactly one of the legal circumstances in which that exists, where there's evidence that the lower-level managers who knew influenced the decision-making, even if the ultimate decision-maker didn't know.

[00:16:15] Speaker 01:
Correct.

[00:16:15] Speaker 01:
That would be the constructive knowledge test that the board has, where you're arguing that a lower-level manager knows about it and is influencing the decision of the higher-level manager.

[00:16:26] Speaker 01:
You're saying in the

[00:16:27] Speaker 02:
Carney case, we actually imputed knowledge?

[00:16:30] Speaker 02:
Or the board imputed knowledge?

[00:16:31] Speaker 01:
I don't think the board actually used the phrase imputed knowledge, but the board did infer from the circumstances because they were aware of his activities that they must have known.

[00:16:41] Speaker 01:
Here in this case, she's not alleging that he must have known.

[00:16:49] Speaker 01:
She's alleging he didn't know.

[00:16:50] Speaker 01:
And she's also not alleging that people who did know influenced his decision.

[00:16:54] Speaker 01:
She's saying that

[00:16:55] Speaker 01:
They didn't tell him, Ms.

[00:16:56] Speaker 01:
Scott didn't tell him.

[00:16:57] Speaker 02:
Well, if we're just in a circumstantial evidence analysis, I mean, these are pretty serious whistleblowing allegations that were made, right?

[00:17:06] Speaker 01:
Yeah, there's no dispute that she made a whistleblowing allegation.

[00:17:09] Speaker 02:
And so the likelihood that some senior manager didn't tell their boss seems kind of low, doesn't it?

[00:17:16] Speaker 01:
Well, based on the timing or the knowledge of timing tests, that's why the board has that test.

[00:17:22] Speaker 01:
So the allegations that

[00:17:26] Speaker 01:
Based on the timing of her transfer, which is the only actual personnel action that she's alleging, I believe that that transfer occurred in December of 2014.

[00:17:36] Speaker 01:
And so the only events that occurred prior to that were the actual disclosures that she made.

[00:17:45] Speaker 01:
I believe there was a memo, the only allegation she presented to the judge was that there was a memo on July 8th, 2013 to Ms.

[00:17:53] Speaker 01:
Scott, whether

[00:17:56] Speaker 01:
She, Ms.

[00:17:57] Speaker 01:
Scott, reported that to Dr. Leonard and now we have no way of knowing because the petitioner is not even alleging that she did and there's no other information in the record.

[00:18:03] Speaker 02:
What was the asserted basis for the transfer?

[00:18:07] Speaker 01:
That was another thing that wasn't fully developed.

[00:18:10] Speaker 01:
But I believe that the agency brief stated that he, Dr. Leonard, was aware that there were problems in the department and had reassigned the manager over Ms.

[00:18:22] Speaker 01:
Peterson and also Ms.

[00:18:23] Speaker 01:
Peterson in an attempt to remedy

[00:18:25] Speaker 01:
those problems in the department, but that's all we really have in the record.

[00:18:29] Speaker 01:
I don't think Petitioner made any allegations about that before the judge.

[00:18:43] Speaker 01:
As I mentioned, Petitioner's allegation did not satisfy the knowledge and timing test, which requires that the official taking the action

[00:18:55] Speaker 01:
knew of the disclosure and that the action occurred within a reasonable time, or within a time such that a reasonable person could conclude that the disclosure was a contributing factor in the personal action.

[00:19:05] Speaker 01:
Here, as I mentioned, we don't have any link between her disclosures and the action either, or no real allegation that the action was taken because of the disclosures or that Dr. Leonard knew.

[00:19:24] Speaker 01:
or that anybody with knowledge influenced him in his decision.

[00:19:28] Speaker 01:
So in the absence of those allegations, because it's petitioner's burden to show a non-probable allegation, we just argue that she has not met that burden.

[00:19:38] Speaker 01:
And therefore, the board did not have jurisdiction over this case.

[00:19:43] Speaker 01:
If there are no further questions, I'll... Thank you, counsel.

[00:19:46] Speaker 04:
Mr. Robinson has a little rebuttal time if he needs it.

[00:19:50] Speaker 04:
Thank you.

[00:19:50] Speaker 00:
Your Honor, Council made reference to the July 8th, 2013 memo that was prepared and submitted.

[00:19:59] Speaker 00:
And that memo states very clearly the allegations that Ms.

[00:20:03] Speaker 00:
Peterson referenced to not only Winona Scott, Bobby Moore, but also to Denise Banks, all which are decision makers.

[00:20:17] Speaker 00:
And that action took place prior to December 29, 2013, in which Winona Scott told Mrs. Peterson that she was being removed from her position and that another individual was coming in to take over for the actions, her position as acting chief of the division.

[00:20:39] Speaker 00:
So Winona Scott made that reference.

[00:20:43] Speaker 00:
That is in the statement that Mrs.

[00:20:46] Speaker 00:
Peterson submitted in July of 2013 that she was told about the action took place.

[00:20:54] Speaker 00:
And later on, she indicated that Mrs. Winona Scott, on December 28th, 29th, 2013, is when Ms.

[00:21:02] Speaker 00:
Scott came in and told her.

[00:21:04] Speaker 00:
Ms.

[00:21:04] Speaker 00:
Scott knew of all these allegations against her.

[00:21:07] Speaker 00:
Now, the government, I'm going to be aboard, references the Carney case.

[00:21:12] Speaker 00:
And although it doesn't mention imputed, it's sort of like it says,

[00:21:15] Speaker 00:
You should know of this, or you should, if you didn't, you should have known.

[00:21:20] Speaker 00:
In this particular case, as Judge O'Malley indicates, all of these individuals, Mrs. Banks, Mr. Moore, and Mrs. Scott, all knew about the actions that took place.

[00:21:33] Speaker 00:
Now that's in the July 8, 2013 letter.

[00:21:38] Speaker 00:
The board knew about that.

[00:21:41] Speaker 00:
That information, even if you apply their constructive knowledge, it would meet that test because the information that the decision makers had, at least the assistant secretary, should be imputed or constructively imposed upon Dr. Leonard when he made the final decision.

[00:22:00] Speaker 00:
But the decision was made and was communicated to Ms.

[00:22:04] Speaker 00:
Peterson by Assistant Secretary Winona Scott four months

[00:22:10] Speaker 00:
Five months after Mrs. Peterson submitted her memo in July 8th, 2013 recounting all of the wrong doings that's been happening and which were substantiated by the Office of Special Counsel in a letter to the president in May, 2015.

[00:22:26] Speaker 02:
There is one thing I want to clarify.

[00:22:29] Speaker 02:
There's confusion in the record about what jurisdictional statement was actually submitted.

[00:22:36] Speaker 02:
The jurisdictional statement that you gave to us

[00:22:40] Speaker 02:
doesn't appear to be in the appendix, or doesn't appear to be the same one that was actually submitted during the course of the proceedings.

[00:22:48] Speaker 02:
Am I wrong?

[00:22:49] Speaker 00:
Would you unindulge me for a moment, please?

[00:23:02] Speaker 00:
That's correct.

[00:23:03] Speaker 00:
If you look at, I think it's five pages of the brief,

[00:23:07] Speaker 00:
That's the correct provision of statement regarding jurisdiction.

[00:23:12] Speaker 02:
I'm talking about what you put in the appendix.

[00:23:16] Speaker 00:
Which page number, Your Honor?

[00:23:19] Speaker 02:
Appendix page two.

[00:23:23] Speaker 02:
Or the appendix to your brief page two.

[00:23:31] Speaker 00:
Yes, Your Honor.

[00:23:32] Speaker 00:
What's the question again?

[00:23:33] Speaker 02:
There's two different

[00:23:37] Speaker 02:
Well, it appears that the jurisdictional statement that you submitted to the board is not the same one that you submitted to us.

[00:23:44] Speaker 00:
Am I wrong?

[00:23:45] Speaker 00:
No, you're not wrong, Your Honor.

[00:23:46] Speaker 00:
That's correct, because the jurisdictional statement before the board would require actions taken differently than that would be before the board after the matters were decided by the board in its final order.

[00:24:02] Speaker ?:
OK.

[00:24:02] Speaker 00:
Thank you, Your Honor.

[00:24:06] Speaker 04:
Thank you, Council.

[00:24:07] Speaker 04:
We'll take this under advisement.

[00:24:09] Speaker 00:
Thank you, Madam.