[00:00:33] Speaker 00:
The next argued case is number 17, 1378, Trinkle against the Merit Systems Protection Board.

[00:00:41] Speaker 00:
Mr. McCorkindale.

[00:00:44] Speaker 03:
Thank you, Your Honor.

[00:00:46] Speaker 03:
May it please the court, in this case, Mr. Trinkle seeks only a jurisdictional hearing because he has made a non-frivolous allegation that could establish, if proven true, that his separation was involuntary from the agency

[00:01:00] Speaker 03:
He had over 14 years of impeccable federal service where he received high-quality ratings as an economist with the Department of Commerce.

[00:01:09] Speaker 03:
But in a series of very well-documented events over about the course of the year, this led to his involuntary separation based on coercion, duress and misinformation.

[00:01:18] Speaker 01:
You say involuntary, but he resigned.

[00:01:22] Speaker 01:
He resigned and he said there were terrible circumstances going on in the employment

[00:01:29] Speaker 01:
a relationship, but it took almost a year for him to resign after those occurred.

[00:01:36] Speaker 01:
That doesn't look like he was coerced to resign.

[00:01:40] Speaker 03:
Your Honor, there are many events over the course of that year.

[00:01:43] Speaker 03:
Of course, there is the near physical attack that is described in great detail, but prior to that time there had been incidents of workplace violence that he had witnessed from these individuals.

[00:01:54] Speaker 03:
He made some reports up and he knew that those would lead to recriminations in his

[00:02:00] Speaker 03:
evaluations and performance evaluations.

[00:02:03] Speaker 03:
He waited many months into August of the next year to receive the full report of the investigating authorities.

[00:02:10] Speaker 03:
And it is only after that, after two months elapsed after that time, that he finally submitted an involuntary resignation.

[00:02:18] Speaker 03:
And he very clearly on the resignation form said, I am resigning because this workplace is no longer safe for me due to the harassment and the physical and emotional and indeed

[00:02:29] Speaker 03:
harassment that he'd experienced.

[00:02:31] Speaker 02:
So he submitted that paperwork in October 2014.

[00:02:35] Speaker 02:
Correct.

[00:02:37] Speaker 02:
But the final separation didn't take effect until January 10.

[00:02:42] Speaker 02:
So you're looking at about a six-month difference there.

[00:02:45] Speaker 02:
Should we take that into account in deciding whether the review below was adequate or not?

[00:02:55] Speaker 03:
You're right, Your Honor.

[00:02:56] Speaker 03:
There is some delay between his

[00:02:59] Speaker 03:
uh... his uh... separation papers that was october thirty first so by all accounts it was probably november december and then ten days into january three months yeah let's say three months and during that time he was nevertheless uh... undergoing performance evaluations and the like uh... he had been told by the hr department uh... that that involuntary separation could be pulled at any time up until the day of his uh... formal separation and so he was during that entire time pleading

[00:03:27] Speaker 03:
as you'll see in the record, for a transfer away from these individuals.

[00:03:31] Speaker 03:
He had no intention of fully separating if he could at all avoid it.

[00:03:36] Speaker 03:
But as the events continued, even during this three month interval, he found that there was no opportunity for him to even go forward.

[00:03:44] Speaker 03:
And so he did involuntarily separate at that time and pursued further recourse with the courts.

[00:03:52] Speaker 03:
As we said, there were several errors in the board's decision in determining that it was not involuntary.

[00:04:02] Speaker 03:
The first being that the board isolated all of these individual instances.

[00:04:06] Speaker 03:
The complete record has many instances and many well-documented events, and the board isolated those and picked them off one by one to suggest that a reasonable person wouldn't have found that too egregious.

[00:04:19] Speaker 03:
However, the court is very clear that

[00:04:22] Speaker 03:
this must be taken for totality, that a reasonable person experiencing all these things, if there are reasonable, if there are allegations, non-frivolous allegations, then the totality of those circumstances may lead one to involuntarily resign.

[00:04:37] Speaker 02:
What does that mean, the totality?

[00:04:39] Speaker 02:
Does that mean that they must account for all of the attributions?

[00:04:43] Speaker 02:
Or is there some other, does that go to a different type of analysis that, as opposed to piecemeal,

[00:04:52] Speaker 03:
I recognize, Your Honor, that in writing opinions, courts have to address things in seriatim fashion.

[00:05:01] Speaker 03:
That is how opinions are written very frequently.

[00:05:05] Speaker 03:
But in this case, there are no linking statements whatsoever, such as given events X and Y, a reasonable person might have thought Z and such and such.

[00:05:14] Speaker 03:
Or given event Z, it's not unreasonable that this occurred after

[00:05:19] Speaker 03:
There is nothing linking up all of these individual events that the court chose to piecemeal address.

[00:05:27] Speaker 03:
Moreover, the board entirely omitted in an abuse of discretion many events that were alleged in the pleadings non-frivolously, such as, for example, the board abuses discretion by entirely excluding from its analysis many of the other relevant background factors, such as years of high-quality service.

[00:05:49] Speaker 03:
This is part of the texture and the context and the background that the court has asked for in performing this analysis.

[00:05:56] Speaker 03:
When Mr. Trinkle had 14 years of high quality and incident-free service, it becomes very suspicious for even a reasonable person why there's suddenly a spiral over the course of a year that led him to exit the agency prematurely.

[00:06:12] Speaker 03:
In Braun, for example, this court noted that a 12-year span of good behavior was a significant factor to consider as part of the totality.

[00:06:21] Speaker 03:
In Shoaff, this court also noted that 12 years of high-quality performance must at a minimum be considered also to place the activity and inactivity immediately preceding the retirement into its proper context.

[00:06:34] Speaker 03:
And so by omitting that entirely from the board's analysis,

[00:06:38] Speaker 03:
It lost this background, facts, and context that would have helped them understand what a reasonable person in that year interval, really that pressure cooker, would have been thinking given the years of impeccable service.

[00:06:53] Speaker 03:
There were other things that were entirely missed by the board.

[00:06:56] Speaker 03:
For example, the board didn't discuss bad blood with supervisors reaching all the way back to 2007.

[00:07:04] Speaker 03:
It didn't discuss numerous requests for transfer

[00:07:08] Speaker 03:
the highly charged emails that occurred during that one year after the near physical event to the date of separation.

[00:07:15] Speaker 03:
Those are all throughout the joint appendix.

[00:07:18] Speaker 03:
There are even allegations that the staff nurse was documenting health issues due to workplace stress and that he was hiding in the nurse's office from these individuals as they would come down the hall.

[00:07:29] Speaker 03:
All of these things would have been sussed out in an evidentiary hearing.

[00:07:32] Speaker 03:
You could have had the nurse, for example, testify.

[00:07:35] Speaker 03:
You could have had these

[00:07:36] Speaker 03:
two supervisors testified of what happened in that room that day.

[00:07:40] Speaker 03:
They deny that anything ever happened.

[00:07:41] Speaker 03:
They deny the meeting even took place.

[00:07:43] Speaker 00:
So what is the relief that you're requesting?

[00:07:47] Speaker 00:
You're objecting to the dismissal at the threshold that resignations are presumed to be involuntary.

[00:07:55] Speaker 00:
And so you're asking for a trial of the same question, isn't that right, before the MSPB hearing on whether or not

[00:08:06] Speaker 00:
The circumstances were such that sufficiently intolerable the resignation was required.

[00:08:14] Speaker 00:
And then what happens?

[00:08:17] Speaker 00:
Either they say, no, a reasonable person would not have retired and therefore you lose, or a reasonable person would have or could have retired.

[00:08:29] Speaker 00:
In either case, what is the benefit?

[00:08:33] Speaker 00:
What is the recovery?

[00:08:35] Speaker 00:
restoration to employment having retired?

[00:08:39] Speaker 03:
Your Honour, the request at this point of Mr Trinkle is much more modest.

[00:08:43] Speaker 03:
He in fact recognized the proper standard when he was writing his own pro se briefs below.

[00:08:48] Speaker 03:
He said all I want is the opportunity to put this under oath and to have the demeanor and the credibility of all those involved assessed in an oral hearing, an evidentiary hearing on jurisdiction.

[00:09:00] Speaker 03:
If after that hearing there is no

[00:09:04] Speaker 03:
No way to go forward because jurisdiction is indeed at that point determined to be insufficiently involuntary.

[00:09:12] Speaker 03:
Then he of course would walk away at that point.

[00:09:15] Speaker 03:
So he's not requesting full reinstatement at this point.

[00:09:18] Speaker 03:
He's requesting a much more threshold analysis occur.

[00:09:22] Speaker 00:
That's my difficulty on the theory accepting your position that the MSPB acted with adverse presumptions or whatever.

[00:09:34] Speaker 00:
and should have granted a hearing, then the hearing will have one of two results.

[00:09:41] Speaker 00:
Either a reasonable person would have retired under the circumstances, or a reasonable person would not have retired.

[00:09:51] Speaker 00:
On either of those outcomes, where are you?

[00:09:57] Speaker 03:
If the board determines after hearing the evidence that

[00:10:03] Speaker 03:
a reasonable person would not have retired, then Mr. Trinkel would certainly have his rights in ordinary course to pursue that.

[00:10:12] Speaker 03:
But at this point, he's only asking for that preliminary step.

[00:10:18] Speaker 03:
Certainly, if it does go forward and they determine that it's time to then pass to the merits, then he reinstatement is certainly within the realm of possible after that merit.

[00:10:30] Speaker 00:
But I didn't see that that was requested.

[00:10:32] Speaker 00:
Was that there as a requested relief from the MSPB?

[00:10:37] Speaker 03:
It is requested.

[00:10:38] Speaker 03:
It was requested in the form of a transfer, but continued employment nonetheless.

[00:10:43] Speaker 03:
He involuntarily separated because he had no way of proceeding forward reasonably with this group of individuals.

[00:10:49] Speaker 03:
So he did anticipate fully continuing on in his federal career, but at this point he needed that jurisdictional hearing to bring forward the evidence.

[00:11:00] Speaker 03:
and demeanor and credibility determinations in a hearing.

[00:11:05] Speaker 03:
I note that the language in Braun, where there is a question as to voluntariness of the petitioner's retirement, and the petitioner makes a non-frivolous allegation, the evidentiary hearing is required.

[00:11:15] Speaker 03:
And he is asking for precisely that.

[00:11:20] Speaker 03:
Moving on, there are some questions, if you'll permit.

[00:11:25] Speaker 03:
There are some questions with respect to the finding of this to be too remote.

[00:11:30] Speaker 03:
For example, this was, you know, the near physical attack occurred about 12 months, 14 months before his separation.

[00:11:39] Speaker 03:
And as a legal matter, it is improper to view it only as a snapshot, to take one thing right before separation and view that as the totality.

[00:11:49] Speaker 03:
The court has instructed very clearly that while remote things may eventually have less probative value,

[00:11:57] Speaker 03:
It is nonetheless an evidentiary hearing that helps determine that.

[00:12:01] Speaker 03:
In Turbin, the case that is often cited by the government, indeed remote events were given less probative value, but that was in the context of this jurisdictional hearing that we're requesting.

[00:12:13] Speaker 02:
Councillor, how do you propose that we review whether the board considered the totality of circumstances?

[00:12:20] Speaker 02:
Do we look for certain transition words, as you were suggesting, or for the court to use some sort of language that actually says, you know, considering all the information before us, is that what we're to look for?

[00:12:36] Speaker 03:
Again, I appreciate that it must be more than magic words.

[00:12:42] Speaker 03:
We're not necessarily looking for that.

[00:12:44] Speaker 03:
But we are looking for the recognition that there were many things that transpired here

[00:12:50] Speaker 03:
And it has a compounding and a dynamic effect.

[00:12:53] Speaker 03:
Just striking down one at a time, event by event, isn't enough.

[00:12:59] Speaker 03:
Even if we look only at the near physical attack, what effectively the board is saying is that a near physical attack where a person wasn't actually touched is per se not enough to have an evidentiary hearing.

[00:13:13] Speaker 03:
That would be a broad rule.

[00:13:15] Speaker 03:
Men and women, young and old,

[00:13:17] Speaker 03:
Perhaps the more wise thing to do in this circumstance is to have that evidentiary hearing.

[00:13:22] Speaker 03:
Find out really how bad that was.

[00:13:23] Speaker 03:
He was cornered in a room.

[00:13:25] Speaker 03:
He was shouted at in his face.

[00:13:26] Speaker 03:
He was told to grab him and stop him from leaving.

[00:13:29] Speaker 03:
And while it didn't actually consummate in an actual assault, he felt very threatened and for many, many months recorded this throughout his emails that he would not meet with them again face to face.

[00:13:42] Speaker 03:
That in and of itself could rise under the right

[00:13:47] Speaker 03:
evidentiary hearing too sufficient that would cause a reasonable person to involuntarily separate if there could be no change in his position under these individuals.

[00:14:01] Speaker 03:
Also, it was said it was too remote that the event back in 2007 where the same individual had actually physically shoved someone, and that was witnessed by Mr. Trinkle, that that couldn't have affected his thinking.

[00:14:15] Speaker 03:
or his eventual involuntary retirement.

[00:14:18] Speaker 03:
Again, this is a matter that could be considered in an evidentiary hearing where people are under oath and demeanor could be witnessed.

[00:14:29] Speaker 00:
Let's hear from the other side.

[00:14:31] Speaker 00:
We'll save you a little time.

[00:14:38] Speaker 00:
Mr. Fung.

[00:14:39] Speaker 04:
Good morning.

[00:14:40] Speaker 04:
May it please the court.

[00:14:43] Speaker 04:
The MSPB correctly dismissed the petitioner's appeal for lack of jurisdiction because he failed to make a non-privileged allegation that he was constructively removed from his employment.

[00:14:53] Speaker 04:
I'd like to address one thing really quickly, which is the board did twice actually state it was addressing the totality of the circumstances in the initial decision, both at the end of the decision

[00:15:04] Speaker 04:
stating specifically it was considering the totality of the circumstances and earlier on appendix page 17 it states that considering all the actions he hasn't demonstrated how that would coerce him to resign.

[00:15:16] Speaker 02:
In your mind what does totality of circumstances mean?

[00:15:19] Speaker 02:
If there's ten events that happened that the board considered all ten events whereas what it seemed to be hearing from your opponent is that

[00:15:33] Speaker 02:
You get those 10 circumstances and see how they weigh against each other and the resulting of them.

[00:15:41] Speaker 04:
A totality of the circumstances analysis is essentially considering all the allegations put forward by the appellant or the petitioner now and weighing or determining whether or not assuming all those allegations are true.

[00:15:59] Speaker 04:
A reasonable person would feel they had no choice but to resign from their employment under those circumstances.

[00:16:06] Speaker 04:
A reasonable person in the petitioner's circumstances simply would not feel like they had no choice but to resign.

[00:16:12] Speaker 04:
As you know, Judge Rainer, there was a long period of time between the last documented event that he alleged, which I think was a near physical attack, and then the retirement application

[00:16:24] Speaker 04:
which happened in October 2014.

[00:16:25] Speaker 02:
There was supposed to be some basis to the argument that the board took an event and looked at it and said, this can't amount to or cause somebody to involuntary resign.

[00:16:40] Speaker 02:
They looked at the other thing and said, well, this is too remote.

[00:16:43] Speaker 02:
This one could not have done that.

[00:16:45] Speaker 02:
And then whereas your opponent says, when you consider them all together, then it could create and there could be

[00:16:53] Speaker 02:
of a non-firmness allegation being made towards involuntary retirement or separation.

[00:17:01] Speaker 04:
Well, the board did consider them all together, as it stated.

[00:17:04] Speaker 04:
It considered the totality of the circumstances and stated, looking at all these actions, the petitioner has not, or the appellant has not demonstrated how they would coerce them to resign.

[00:17:15] Speaker 04:
What the board's analysis was doing was effectively providing more detail as to the weakness of the individual claims.

[00:17:22] Speaker 04:
As Petitioner's Council pointed out, it's a necessary function in describing the overall environment is to describe each element making up the environment.

[00:17:31] Speaker 04:
Otherwise, it would be nothing more than just listing the allegations and saying, sorry, not good enough, which I suspect would be equally unsatisfying to the person.

[00:17:40] Speaker 01:
Would you say that if they resigned the week after this near physical altercation,

[00:17:45] Speaker 01:
That would be quite a different story.

[00:17:48] Speaker 04:
I can certainly say it would be a stronger allegation in those circumstances under this court's precedent from Turbin saying that this period of time is relevant for a coercive effect of an event.

[00:18:00] Speaker 04:
A year from the event certainly weakens the causal effect of that event.

[00:18:06] Speaker 04:
And then another three months.

[00:18:07] Speaker 02:
But even in the interim, they witnessed another event going on involving some sort of physical activity

[00:18:15] Speaker 04:
In that circumstance, that would be up for the board to weigh.

[00:18:18] Speaker 04:
That was not before the board here, and I can't opine in the advisory opinion from the board.

[00:18:23] Speaker 02:
I was just trying to check the temporal argument that you're making.

[00:18:28] Speaker 04:
Yes.

[00:18:28] Speaker 04:
I mean, certainly more events would strengthen his claim, but that's not what happened here.

[00:18:33] Speaker 04:
And in this circumstance, what the record demonstrates is there was a near physical attack in November 2013.

[00:18:42] Speaker 04:
and then nothing except possibly an investigation in the interim and by his own account he was possibly trying to avoid them for a year and then he submits a retirement application in October 2014 but still does not retire at that time.

[00:18:58] Speaker 04:
It still waits another three months before he finally retires, demonstrating that this wasn't an intolerable work environment.

[00:19:05] Speaker 04:
It was at best maybe an unpleasant work environment

[00:19:07] Speaker 04:
But it was something he was clearly able to tolerate a little bit or enough to stay in the workplace.

[00:19:13] Speaker 01:
You haven't heard much about the peanut gallery remark.

[00:19:17] Speaker 01:
When did that occur in this time span?

[00:19:20] Speaker 04:
Well, you haven't heard much about it because it's unclear as to when it happened.

[00:19:23] Speaker 04:
It may have happened before the near physical attack, sometime in the fall of 2013, before November.

[00:19:29] Speaker 04:
But I would like to address that for a different reason.

[00:19:32] Speaker 04:
which is that the petitioner waived his discrimination claims in order to remain in this court after the Supreme Court's decision in Perry.

[00:19:39] Speaker 04:
So to the extent that the negative character of any of the events making up this intolerable work environment are derived solely from discrimination.

[00:19:48] Speaker 00:
Nobody said that.

[00:19:51] Speaker 00:
This is really what I'm trying to understand the MSPB's position, that a hearing was denied, which means that at the threshold,

[00:20:01] Speaker 00:
accepting all reasonably plausible representations as true as you must at that stage, that there's absolutely no way that this combination of circumstances, because the hearing was denied, it's not what would or would not have been admitted at the hearing.

[00:20:21] Speaker 00:
We're taking the complaint.

[00:20:23] Speaker 00:
With all of the circumstances, the performance improvement plan, the situation, the conditions,

[00:20:30] Speaker 00:
All of the events which we are being told about, the MSPB's position was giving all reasonably plausible credibility to these allegations.

[00:20:43] Speaker 00:
There's no way that a reasonable person would have retired.

[00:20:48] Speaker 00:
And are you telling me that the evidence supports that?

[00:20:53] Speaker 00:
We're not talking about a final decision.

[00:20:56] Speaker 00:
What we're given is that you're not going to get a chance to make your case.

[00:21:00] Speaker 00:
We're not going to let you in the door because there's no way you can prevail no matter what, giving you all the benefit of the doubt.

[00:21:09] Speaker 00:
And that seems to me peculiar on the representations that are made unless the MSPB also at that stage is able to show that there's no way these representations could even be made.

[00:21:24] Speaker 04:
No, that's not, Your Honor, to the last part.

[00:21:27] Speaker 04:
That's now what the MCB is saying.

[00:21:28] Speaker 04:
We're not saying these could not be made.

[00:21:30] Speaker 04:
We are assuming, and not even reasonably plausibly true allegations, we're assuming all allegations are true at the non-privilege stage.

[00:21:38] Speaker 04:
And what we state or what we are holding is that no reasonable person in these circumstances would feel compelled to resign.

[00:21:48] Speaker 04:
It's a very high bar that very few individuals ever actually reach because it's a

[00:21:55] Speaker 04:
incredibly demanding standard, as this court has stated, you have to feel as if you have no choice but to resign.

[00:22:02] Speaker 04:
And clearly, he felt he had some choice because he worked for a hearing.

[00:22:07] Speaker 02:
It sounds like you're saying that at that threshold point, you have to prove the merits.

[00:22:12] Speaker 04:
No, Your Honor.

[00:22:13] Speaker 04:
What we're saying, because a merit, and it becomes complicated because the merits become intuitively intertwined at a jurisdictional hearing.

[00:22:23] Speaker 04:
What we are saying is that assuming his allegations are true, a reasonable person still wouldn't feel compelled to resign.

[00:22:29] Speaker 04:
A jurisdictional hearing would be held if he made allegations that if you could prove them true, that they actually happened, such as in your physical attack, that a reasonable person would feel compelled to resign in those circumstances.

[00:22:41] Speaker 00:
That's different from what I thought I heard you say at the beginning of your argument.

[00:22:47] Speaker 04:
Which was?

[00:22:48] Speaker 00:
That he hadn't proved this and that.

[00:22:53] Speaker 00:
You consider this and that and it wasn't enough.

[00:22:56] Speaker 00:
That is the merits.

[00:22:58] Speaker 00:
Now, is the MSPB's position that all that's appropriate as for any complaint is a plausible statement of facts to be proved?

[00:23:11] Speaker 04:
To reach the jurisdictional hearing, yes.

[00:23:13] Speaker 04:
And if I stated earlier that it needed to be proven, that was a misstatement, and I apologize.

[00:23:16] Speaker 00:
It's not a matter of jurisdiction.

[00:23:17] Speaker 00:
They decided on the merits.

[00:23:19] Speaker 00:
There's no way you can prevail, so you're not going to get a hearing.

[00:23:23] Speaker 00:
They didn't say we don't have jurisdiction to hear your case.

[00:23:26] Speaker 04:
I apologize for interrupting, but we are saying that if you were to prove these true, you still would not show that you were coerced to resign.

[00:23:37] Speaker 04:
A merits determination is one.

[00:23:39] Speaker 04:
But they must accept them as true.

[00:23:42] Speaker 04:
Yes.

[00:23:43] Speaker 04:
What do you mean if you prove that these are true?

[00:23:46] Speaker 04:
What we are saying is that if you prove them to be true at the merits hearing and show that they actually happened

[00:23:52] Speaker 04:
you still wouldn't have been coerced to resign.

[00:23:54] Speaker 04:
We're accepting them as true.

[00:23:55] Speaker 04:
And because we're accepting them as true and looking at them as true, looking at them as true, they still would not coerce somebody to resign.

[00:24:04] Speaker 04:
So you have not made an unfiltered allegation of jurisdiction.

[00:24:09] Speaker 04:
But I'd like to go back to what I was raising with Judge Laurie earlier.

[00:24:13] Speaker 04:
Because he waived discrimination to remain before this court,

[00:24:16] Speaker 04:
anything such as his medical condition that he alleged the agency failure to accommodate by not transferring him must all be considered waived before this court.

[00:24:27] Speaker 04:
And to the extent that those heightened his allegations at all or strengthened his claim that he should have felt or a reasonable person would feel compelled to resign under those circumstances, those should be considered waived.

[00:24:40] Speaker 04:
The peanut gallery comment appears to be an age discrimination based comment.

[00:24:44] Speaker 04:
So that comment also should be considered as waived before this court and should no longer be considered in the determination as to whether or not a reasonable person will resign.

[00:24:52] Speaker 00:
The determination because of age, but you're now telling us that it is inappropriate to consider the viewpoint, the sensitivities of an employee.

[00:25:05] Speaker 04:
For his specific discrimination complaints, yes.

[00:25:08] Speaker 04:
If he wants to remain alleging his discrimination complaints, that now needs to be reviewed in district court.

[00:25:13] Speaker 00:
He was discriminated against because he didn't like to be pushed around?

[00:25:17] Speaker 04:
He was discriminated against because of his medical condition of PTSD or his age.

[00:25:24] Speaker 00:
He also had a claim for discrimination because of age.

[00:25:28] Speaker 00:
It looked to me as if that was what was being waived.

[00:25:31] Speaker 04:
Yeah, well he later on, and the board addressed this in the final order,

[00:25:35] Speaker 04:
claimed that the transfer or the failure to transfer him was a claim or was a failure to accommodate his medical condition, which would be a violation of the Rehabilitation Act.

[00:25:44] Speaker 02:
That would also be... So are you saying that the peanut gallery comment wasn't reviewed at all?

[00:25:51] Speaker 04:
No, it was reviewed by the board, but after the board reviewed this case, the Supreme Court issued Perry, which states that all discrimination allegations, even in jurisdictional determination... Why was that a discrimination claim?

[00:26:02] Speaker 04:
because it was allegedly based on his age, the peanut gallery rumor.

[00:26:06] Speaker 00:
I mean, there was no facts brought out as to what was meant?

[00:26:09] Speaker 04:
Well, according to the petitioner, he was sitting with a group of older individuals, and they were referred to collectively as the peanut gallery, and he contended to the EEOC, or to this agency's EEO office, that it was based on his age.

[00:26:21] Speaker 02:
What can't that add to the creation of this hostile environment that forced him out, and not have to peg it as age discrimination

[00:26:32] Speaker 04:
Well, it can still be viewed independently.

[00:26:36] Speaker 02:
It's just a negative comment, but if it's negative... But that's what I wonder whether it was viewed independently here or not.

[00:26:42] Speaker 02:
And it seems to me that you're saying that it was not viewed independently.

[00:26:45] Speaker 02:
It was viewed only within the context of age discrimination.

[00:26:49] Speaker 04:
It was viewed as he put forward to the board, and he included it to the board as part of his EEO complaint.

[00:26:55] Speaker 04:
So it was viewed as an age discrimination related comment because it was included in his EEO complaint.

[00:27:03] Speaker 04:
If this court has no further questions.

[00:27:06] Speaker 04:
And then we ask the decision of the MSPB to be affirmed.

[00:27:09] Speaker 00:
Thank you.

[00:27:14] Speaker 00:
Mr. McCorkin now.

[00:27:16] Speaker 03:
Judge Newman, I'd like to quickly circle back to one of your questions, an ultimate remedy.

[00:27:23] Speaker 03:
If he did prevail in an evidentiary hearing in jurisdiction attached, he could go forward on the merits.

[00:27:30] Speaker 03:
We would assume that since he did request transfer numerous times that he could be reinstated and considered for a transfer at that point.

[00:27:40] Speaker 03:
But certainly that's well down the road of what we're asking for here, that threshold jurisdictional analysis in an evidentiary hearing.

[00:27:48] Speaker 03:
The government continues to hang everything on that one date, November 13, 2013, when the near physical attack occurred.

[00:27:58] Speaker 03:
After that time in April, Mr. Trinkle was dealing with the security officers to discuss this.

[00:28:05] Speaker 03:
He was dealing with this higher ups in April.

[00:28:07] Speaker 03:
There are emails to all these effects.

[00:28:10] Speaker 03:
Certainly by August of 2014, he'd received the investigation that said, we're not going to act on this.

[00:28:17] Speaker 03:
And that was the investigation result in 2014.

[00:28:21] Speaker 03:
And only two months later, October 31st, he formally submitted his resignation.

[00:28:26] Speaker 03:
Still during that time, he was holding out beyond hope for a transfer, so those further events still continued to play in in December, and then in January 2015, he eventually separated.

[00:28:38] Speaker 03:
So that year was replete with further incidents and further thinking, but ultimately he realized, and he describes this as the dam bursting when he realized he was going to get no support or help from reporting up, that it was a continuous and unredressed pattern of behavior.

[00:28:54] Speaker 03:
And in Bates, the case that we cite, that was enough also.

[00:28:58] Speaker 03:
So that entire lapse of time where he sees that he's not getting any recourse or relief, he finally recognizes that these memos are coming out where they're not going to help him.

[00:29:08] Speaker 03:
That's what drove him to his ultimate involuntary separation.

[00:29:13] Speaker 03:
Just lastly, just to put this back into perspective, Cahill very recently addressed the non-frivolous standard.

[00:29:21] Speaker 03:
in the context of whistleblowers, but the case law that Cahill cited was for constructive separation, like we're dealing with Hill here in the Garcia opinion, for example.

[00:29:32] Speaker 03:
And it talks about a non-frivolous allegation being only sufficient that it could establish retirement as involuntary, and not that it has to at that point.

[00:29:42] Speaker 03:
And so a non-frivolous allegation, the CFR helps us understand what that means.

[00:29:47] Speaker 03:
It's a three-part, more than conclusory,

[00:29:50] Speaker 03:
And I would submit that Mr. Trinkle in extensively and cogently in his pro se briefing, 35 pages explains the state of constant coercion, distress and misinformation.

[00:30:00] Speaker 03:
He supports that with dozens and dozens of pages of contemporaneous emails and documents showing that this was going on.

[00:30:07] Speaker 03:
These allegations are not conclusory by any definition.

[00:30:11] Speaker 03:
The second part of a non-frivolous allegation in the CFR says plausible on its face.

[00:30:15] Speaker 03:
And there is nothing implausible here about allegations of workplace harassment.

[00:30:20] Speaker 03:
Call it school yard bullying.

[00:30:21] Speaker 03:
Call it what you may.

[00:30:23] Speaker 03:
It's not implausible to see that these supervisors were systematically persecuting a subordinate.

[00:30:31] Speaker 03:
And that is a continuous and unredressed pattern for this victim.

[00:30:36] Speaker 03:
Many would endure that for 14 months, trying to make that improve, trying to call out for help, but it didn't improve.

[00:30:43] Speaker 03:
And when he realized that, he knew that he had to call it quits.

[00:30:48] Speaker 03:
Not unreasonably so.

[00:30:49] Speaker 03:
The third element is material to the legal issues in this appeal.

[00:30:53] Speaker 03:
If Mr. Trinkle's allegations are played out and go to an evidentiary hearing, he claims that they'll support a showing of abuse and recrimination that occurred that rendered his separation involuntary.

[00:31:08] Speaker 03:
Mr. Trinkle may have been a gadfly to the agency over that last year.

[00:31:11] Speaker 03:
He was raising irregularities.

[00:31:14] Speaker 03:
He was noting things.

[00:31:15] Speaker 03:
He wasn't just rolling over and

[00:31:17] Speaker 03:
and going away.

[00:31:19] Speaker 03:
But they didn't have a right to squash him the way they did and to swat him aside.

[00:31:23] Speaker 03:
He should have been reviewed under proper processes of law, and that would require a jurisdictional analysis and an evidentiary hearing at this point.

[00:31:33] Speaker 03:
And I thank you for your time.

[00:31:34] Speaker 03:
If there are no other questions, we will yield.

[00:31:39] Speaker 00:
Thank you.

[00:31:39] Speaker 00:
Thank you.

[00:31:40] Speaker 00:
Thank you both.

[00:31:41] Speaker 00:
The case is taken under submission.