[00:00:00] Speaker 01:
System Protection Board, Bill Rial versus the Bureau of Prisons, case number 172275.

[00:00:09] Speaker 01:
Ms.

[00:00:20] Speaker 01:
Mendoza, you want five minutes for rebuttal?

[00:00:45] Speaker 01:
Okay, you may begin.

[00:00:49] Speaker 00:
May I please support?

[00:00:50] Speaker 00:
Good morning.

[00:00:52] Speaker 00:
We brought this appeal to challenge the arbitrator's award in confirming the agency's decision to terminate Mr. Villarreal in his position at the Bureau of Prison.

[00:01:06] Speaker 00:
I think the arguments that we raised in our brief are pretty well developed.

[00:01:12] Speaker 00:
I want to emphasize, though,

[00:01:14] Speaker 00:
that during the period of time that the investigation was taking place, and as we informed in our brief, it was 1,265 days, Mr. Villarreal was assigned to a position that is called phone monitor.

[00:01:30] Speaker 00:
And what are the duties in that position?

[00:01:33] Speaker 04:
The duties are... 1,200, what is it, 65 days?

[00:01:37] Speaker 04:
Yeah, 60 days.

[00:01:38] Speaker 04:
In 1,265 days, is that out of keeping with the delays?

[00:01:44] Speaker 04:
It seems to me that there's information in the record that shows that there was significant delays almost in all of these type of cases that are before the Bureau.

[00:01:55] Speaker 00:
Right, and that's... Was it out of place or was it rare?

[00:02:00] Speaker 00:
The memorandum that was issued by the director regarding the timeliness of the investigations was supposed to fix the problem that had been presented for years in the Bureau of Prisons.

[00:02:16] Speaker 00:
So that's why the memorandum was issued to tell all CEOs of all the institutions

[00:02:25] Speaker 00:
you have to provide a timely investigation to the employee.

[00:02:29] Speaker 04:
So the Interrandum recognizes that there's a problem.

[00:02:32] Speaker 04:
There's an overall problem.

[00:02:33] Speaker 04:
There's an overall problem.

[00:02:35] Speaker 04:
But for Mr. Villarreal, was his delay out of keeping with them?

[00:02:40] Speaker 00:
Yes.

[00:02:40] Speaker 04:
Was it more than the regular type of delay?

[00:02:44] Speaker 00:
I've been an attorney for the union employees since 2002.

[00:02:50] Speaker 00:
And I usually see a delay of a year, a year and a half.

[00:02:53] Speaker 00:
To have three years and almost five months of a delay is the first time I ever see this.

[00:02:59] Speaker 00:
And it's actually the first time even for a year, year and a half delay that I've had an arbitrator decide that even if it's untimely, I don't care because it didn't cause any harm to the employee.

[00:03:14] Speaker 00:
As a matter of fact, everyone in the union has been paying attention to this case because

[00:03:19] Speaker 00:
They were like, how is it possible that you lost an untimely discipline case?

[00:03:24] Speaker 00:
Because all the cases that we've had with prior arbitrators in the Bureau of Prisons have reversed that discipline because of the amount of time.

[00:03:33] Speaker 00:
As I mentioned, there are cases that take a year and a half, two years.

[00:03:39] Speaker 00:
But to have three years and five months, it was totally... In order to show that the way

[00:03:45] Speaker 04:
the decision of the arbitrator.

[00:03:48] Speaker 04:
You have to show some sort of harm.

[00:03:50] Speaker 00:
Yes.

[00:03:51] Speaker 04:
To lay itself as harmful.

[00:03:52] Speaker 00:
Yes.

[00:03:53] Speaker 04:
And my argument is... I'm having a hard time finding that in your brief.

[00:03:57] Speaker 00:
I will clarify this, and it is somewhere in our brief.

[00:04:02] Speaker 03:
But didn't the arbitrator hold that in front of him you had not made a showing of harm?

[00:04:10] Speaker 00:
Yes.

[00:04:11] Speaker 00:
We did present in our brief the fact that

[00:04:14] Speaker 00:
there was a change in deciding official.

[00:04:17] Speaker 00:
So we have the warden.

[00:04:18] Speaker 03:
I think what Judge Raina is asking for is harm to your client as a result.

[00:04:26] Speaker 03:
My understanding is that your client was paid, was kept on duty.

[00:04:31] Speaker 03:
They took his gun away or whatever, but he continued to have a job and benefits and all of that, all during this time period.

[00:04:40] Speaker 00:
Yes, the problem with that is that we made a request for

[00:04:44] Speaker 00:
the lack of overtime.

[00:04:45] Speaker 00:
Remember that when we request that a decision or a discipline be overturned, we want the employee to be put back in the same place as if the person had.

[00:04:55] Speaker 01:
But haven't we held that a premium pay cannot be factored into a reduction in pay argument?

[00:05:05] Speaker 01:
In other words, the fact that you can't get overtime doesn't mean that there was actually a penalty.

[00:05:11] Speaker 00:
Yes, but because the delay was so long,

[00:05:15] Speaker 00:
I mean, I understand that that is the argument.

[00:05:18] Speaker 00:
He was not allowed to work that overtime.

[00:05:22] Speaker 00:
If this would have been decided when Mr. Babcock was the warden, Mr. Babcock, we understand that Mr. Babcock's conversation with Mr. Rosario, Mr. Rosario, I'm sorry, that the employee was going to get 30 days.

[00:05:38] Speaker 00:
And they acted.

[00:05:38] Speaker 04:
The harm you're pointing out is a fiscal, an economic harm to your client.

[00:05:44] Speaker 00:
It's not a physical harm.

[00:05:45] Speaker 00:
It's an economical and reputation-wise harm.

[00:05:49] Speaker 04:
I meant fiscal as in economic terms.

[00:05:51] Speaker 04:
It cost him money.

[00:05:52] Speaker 04:
Of course.

[00:05:53] Speaker 04:
And we requested back pay.

[00:05:54] Speaker 04:
That's the harm to it.

[00:05:55] Speaker 00:
Yes.

[00:05:56] Speaker 04:
But that's not the law that we have.

[00:05:58] Speaker 04:
You have to show harm in that.

[00:06:00] Speaker 04:
But for that harm, another decision or opposite decision would have been made.

[00:06:05] Speaker 00:
Well, our position is the change of deciding official.

[00:06:10] Speaker 00:
If that decision would have been made within the time period that was supposed to be made, Mr. Villarreal would have been suspended only for 30 days.

[00:06:20] Speaker 00:
And we can argue that we have Mr. Babcock allegedly telling Mr. Rosario it's a 30-day suspension.

[00:06:28] Speaker 00:
And then we have Mr. Pierce saying, no, Mr. Babcock told me that this is a potential termination.

[00:06:35] Speaker 00:
So we have both hearsay there, right?

[00:06:37] Speaker 01:
But the only direct evidence that cannot be... But the arbitrator made a specific finding of fact that the original warden's decision was never made final, right?

[00:06:47] Speaker 01:
That is correct.

[00:06:48] Speaker 01:
That is correct.

[00:06:49] Speaker 01:
It was a draft.

[00:06:50] Speaker 01:
And we have held that where a new fact-finder or decision-maker has the exact same information before him or her as the old decision-maker,

[00:07:00] Speaker 01:
that there's no due process problem with the change in decision makers.

[00:07:05] Speaker 00:
I understand.

[00:07:06] Speaker 00:
But here, we have such a drastic change of disciplinary measures to be involved.

[00:07:11] Speaker 00:
I mean, it was only to be supposed to be a 30-day suspension versus a termination.

[00:07:17] Speaker 00:
And they had him over in phone monitors for the alleged egregious violation of the calls, et cetera.

[00:07:26] Speaker 00:
And what he was doing in the phone monitors was to monitor phone calls

[00:07:31] Speaker 00:
of inmates with families.

[00:07:33] Speaker 00:
And it was ironic to find that even though Mr. Pierce found it so egregious that he was making phone calls on behalf of this inmate, that the temporary assignment painting investigation was to monitor the inmate's phone calls that they made to their relatives and so forth.

[00:07:54] Speaker 00:
So the egregiousness fact

[00:07:56] Speaker 03:
We don't know why he was given that assignment though, right?

[00:08:02] Speaker 03:
Well, he was given that assignment pending investigation because... No, no, but I mean, while the investigation was pending, he was given the assignment to monitor these calls.

[00:08:10] Speaker 03:
Right.

[00:08:11] Speaker 03:
And you're making a point out of that, but I don't understand what the point is.

[00:08:14] Speaker 03:
It may have been that they wanted him to monitor those calls so he could listen and hear all the bad stuff and then appreciate why it is he shouldn't have done what he did.

[00:08:23] Speaker 03:
Unless I have a reason to know why they gave him that job.

[00:08:29] Speaker 03:
But I don't see that on the record.

[00:08:31] Speaker 03:
It doesn't help me to think that you're making an argument out of the assignment that he was given.

[00:08:37] Speaker 00:
The thing is that the phone monitor position is outside the institution as such.

[00:08:41] Speaker 00:
It's in another building.

[00:08:43] Speaker 00:
So they took him out of the building where the cells are.

[00:08:47] Speaker 00:
And they placed him in another area.

[00:08:50] Speaker 00:
where they give training and so forth.

[00:08:53] Speaker 01:
But the master agreement allows them to do that if they have lost confidence in his ability to operate within the building where the cells are.

[00:09:00] Speaker 00:
Understood.

[00:09:02] Speaker 00:
But my point, Your Honor, is that it doesn't make sense to find him guilty or find him sustained a charge that he was a threat to the institution or to the safety

[00:09:20] Speaker 00:
and using that argument to terminate him when, in fact, for three years, he was in charge of monitoring the focus.

[00:09:28] Speaker 04:
But isn't he monitoring the phone?

[00:09:29] Speaker 04:
He doesn't have any type of contact with the inmates.

[00:09:32] Speaker 04:
And the purpose of having him monitor the calls is to get him out of the prison setting, away from the inmates, and now he's just monitoring calls.

[00:09:43] Speaker 00:
Right.

[00:09:43] Speaker 04:
But in that position, you're arguing that monitoring the calls equals

[00:09:50] Speaker 04:
contact with prisoners.

[00:09:52] Speaker 04:
It could translate to that, because he could have... But it doesn't translate to that.

[00:09:58] Speaker 04:
On the one hand, he's day-to-day contact with prisoners, and that got him in trouble, and he's placed outside of the prison walls into another building where he has zero contact with the prisoners.

[00:10:11] Speaker 00:
That is correct, but the fact that... The way that he's placed is in a place where all the correctional officers

[00:10:20] Speaker 00:
are going to the training center.

[00:10:22] Speaker 00:
So he had a desk in front of that training center.

[00:10:25] Speaker 00:
All the officers saw that he was there.

[00:10:28] Speaker 00:
On the other hand, the fact that he was listening to all these phone conversations, it's our position that he was exposed to have information from inmates and from their relatives that he could have used

[00:10:45] Speaker 00:
to communicate with other officers.

[00:10:47] Speaker 01:
I'm not sure how relevant this is, but it's also not in your briefs.

[00:10:50] Speaker 01:
So let's focus on what's in your briefs.

[00:10:53] Speaker 01:
With respect to Mr. Babcock, how do you know that he had made a final decision that 30 days was final?

[00:10:59] Speaker 00:
Well, we don't have a final decision because the draft letter was not signed and was not issued.

[00:11:06] Speaker 00:
We do not have the draft.

[00:11:08] Speaker 01:
It was signed and it wasn't sent.

[00:11:10] Speaker 00:
Right.

[00:11:11] Speaker 00:
But it was discussed with the union's president, Mr. J. Osorio, and the decision was included in that.

[00:11:19] Speaker 01:
Did you seek to depose any of these witnesses or to present any of these witnesses during the arbitration process?

[00:11:26] Speaker 00:
Under the Massey agreement, the agency is not going to provide.

[00:11:33] Speaker 00:
They were retired, right?

[00:11:36] Speaker 00:
Yeah, because these people were retired.

[00:11:38] Speaker 03:
ADG has a rule that they don't ever bother people once they retire.

[00:11:42] Speaker 00:
Because they are not management anymore.

[00:11:44] Speaker 04:
And that's part of your argument about the delay.

[00:11:46] Speaker 04:
The delay was so long, everybody retired, everybody involved in the case retired, and ultimately you weren't able to subpoena them to come in, and that's your due process argument as well.

[00:11:56] Speaker 00:
Correct.

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

[00:12:01] Speaker 01:
You're into your bottle time.

[00:12:02] Speaker 01:
You want to save it?

[00:12:03] Speaker 00:
Yes.

[00:12:03] Speaker 00:
Thank you, Your Honor.

[00:12:12] Speaker 02:
May it please the Court?

[00:12:14] Speaker 02:
I'll address first the timeliness argument that the Court has shown interest in.

[00:12:19] Speaker 02:
In Coronado v. Nutt, the Supreme Court pointed out that if there is a procedural violation,

[00:12:27] Speaker 02:
It is only of consequence if there is a demonstration of prejudice.

[00:12:33] Speaker 02:
And for example, in the Cornelius versus Hunt, one of the procedural violations that was alleged was a delay between the time that the agency became aware of the misconduct and the time it issued the notice of proposed adverse.

[00:12:52] Speaker 04:
In this case, that delay is 1,265 days.

[00:12:55] Speaker 04:
There's 1,265 days from the date that he was notified, that Mr. Riarado was notified about the charges to the time he was terminated.

[00:13:05] Speaker 04:
During that time, people retired, people relocated, and the thing dragged on.

[00:13:12] Speaker 04:
Why shouldn't we not find that Mr. Riarado was harmed, was prejudiced, or at least had his due process rights violated by the delay caused by the Bureau?

[00:13:24] Speaker 02:
First of all, as pointed out in the Supreme Court case, it's the employee's burden to demonstrate the harm, to demonstrate the prejudice.

[00:13:32] Speaker 01:
Well, one of the pieces of prejudice is that the employees who apparently were contemplating only a 30-day suspension had retired, and so they were no longer accessible, and that you end up having a new decision-maker who comes into clean house.

[00:13:51] Speaker 01:
But so why isn't the delay?

[00:13:53] Speaker 01:
I mean, they do cite prejudice.

[00:13:57] Speaker 02:
Your Honor, respectfully, they made no argument of prejudice to the arbitrator.

[00:14:02] Speaker 02:
And the arbitrator made that finding of fact in his decision, that there was no assertion of any prejudice before the arbitrator.

[00:14:11] Speaker 02:
That's a finding of fact by the arbitrator supported by the proceedings before the arbitrator.

[00:14:18] Speaker 02:
These are new arguments being raised here.

[00:14:21] Speaker 02:
Now, to address the new arguments.

[00:14:23] Speaker 02:
Not only being raised, but being developed by the bench.

[00:14:28] Speaker 03:
Yes, Your Honor.

[00:14:29] Speaker 03:
Not by counsel.

[00:14:30] Speaker 03:
Just to have the record clear.

[00:14:32] Speaker 02:
Yes, Your Honor.

[00:14:34] Speaker 02:
But to address the court's questions in light of the record that was before the arbitrator.

[00:14:42] Speaker 02:
What the arbitrator had before him was testimony from

[00:14:46] Speaker 02:
Warden Pierce and also from the union president.

[00:14:52] Speaker 02:
And as the arbitrator pointed out in his decision, he had testimony from the union president that Warden Babcock had made a statement to him in August of 2014 that it looked like he had a suspension case in front of him with regard to Mr. Villarreal.

[00:15:14] Speaker 02:
Warden Pierce's testimony was different.

[00:15:18] Speaker 02:
He testified that in November of 2014, there was a meeting between Warden Babcock and himself, a transition meeting, which is traditional in the prisons.

[00:15:30] Speaker 02:
When a prison is going to be transferred from one warden to the next warden, there is a transition meeting.

[00:15:36] Speaker 02:
And in this transition meeting, Warden Babcock told Warden Pierce that he had a

[00:15:44] Speaker 02:
termination matter, potential termination matter.

[00:15:47] Speaker 02:
That's how we described it and also made the comment.

[00:15:51] Speaker 03:
Now these people that are testifying, were they former employees?

[00:15:55] Speaker 03:
Excuse me?

[00:15:55] Speaker 03:
This testimony that you're talking about that was now was in front of the arbitrator.

[00:15:59] Speaker 03:
Right.

[00:15:59] Speaker 03:
Because earlier we had in the air the notion that there hadn't been any testimony in front of the arbitrator on this issue.

[00:16:08] Speaker 02:
There was testimony from Warden Peart.

[00:16:10] Speaker 02:
I'm recounting the testimony.

[00:16:12] Speaker 03:
He's the deciding official.

[00:16:13] Speaker 02:
Yes, he's the deciding official.

[00:16:16] Speaker 02:
And he had this meeting in November of 2014 where he's told by Warden Babcock that he has a termination matter or a potential termination matter.

[00:16:26] Speaker 02:
If the court will recall.

[00:16:27] Speaker 02:
And that was hearsay?

[00:16:29] Speaker 02:
Yes, it is hearsay.

[00:16:30] Speaker 02:
But it wasn't challenged.

[00:16:32] Speaker 02:
No.

[00:16:33] Speaker 02:
It wasn't challenged by Villarreal as hearsay.

[00:16:37] Speaker 02:
As the arbitrator said, it was hearsay in both instances.

[00:16:40] Speaker 02:
The union president was relating hearsay.

[00:16:43] Speaker 02:
The warden was relating hearsay.

[00:16:45] Speaker 02:
And it appeared to the arbitrator that if both were true, that perhaps Warden Babcock had changed his point of view.

[00:16:53] Speaker 02:
By the time they have this transmission meeting in November of 2014.

[00:16:59] Speaker 01:
Or hadn't really made up his mind.

[00:17:03] Speaker 02:
Yes.

[00:17:04] Speaker 02:
Which might explain why he hadn't issued the draft.

[00:17:07] Speaker 02:
The draft, Warden Pierce was shown that draft during the... Right, but what I'm saying is the possibility of a change of mind.

[00:17:18] Speaker 03:
Yes.

[00:17:19] Speaker 03:
The person that wrote the draft and the fact that they had an issue might go to the fact that he did have a change of mind.

[00:17:25] Speaker 02:
Well, whoever wrote the draft, as Warden Pierce pointed out.

[00:17:28] Speaker 02:
Whoever wrote it, somebody changed their mind somewhere along the way, perhaps.

[00:17:35] Speaker 02:
But Warden Pierce also testified that when he comes on the job in January of 2015, and before the official notice of proposed removal goes out, under the signature of Captain Furrer, who is the department head, he's two levels above Mr. Villarreal, but Warden Pierce points out that

[00:18:03] Speaker 02:
He was told by the captain that he was sending out a notice of proposed removal.

[00:18:08] Speaker 02:
That was the captain's decision.

[00:18:10] Speaker 02:
And the warden testifies and explains that the charges and the proposed discipline that goes in the notice of proposed removal, that's the captain's decision.

[00:18:24] Speaker 02:
And he was informed by the captain that it was going to be a termination.

[00:18:29] Speaker 01:
And then eventually... And the captain was the same throughout?

[00:18:31] Speaker 01:
Yes, the captain.

[00:18:32] Speaker 01:
So we don't have a new captain.

[00:18:34] Speaker 02:
No, there's no new captain.

[00:18:35] Speaker 02:
He's the same individual throughout.

[00:18:39] Speaker 02:
And he maintains to Warden Pierce that it's going to be a termination.

[00:18:43] Speaker 02:
And he uses it as a termination.

[00:18:45] Speaker 02:
And then it comes to Warden Pierce for decision.

[00:18:51] Speaker 03:
The captain was still a current employee of the agency at the time this was at the hearings going on.

[00:18:57] Speaker 02:
at the time it's going on.

[00:18:58] Speaker 02:
He's not an employee at the time of the arbitration hearing.

[00:19:02] Speaker 02:
Right, so he didn't testify either.

[00:19:04] Speaker 02:
No, so he did not testify.

[00:19:06] Speaker 02:
But his decision is not at issue.

[00:19:08] Speaker 02:
What's at issue is the decision of Warden Pierce, who, of course, could either adopt the captain's point of view or totally disagree with the captain as to the charges or the discipline.

[00:19:22] Speaker 02:
Now, there was initially questions about the time frame.

[00:19:25] Speaker 02:
I did want to address that

[00:19:27] Speaker 02:
with a little bit more specificity.

[00:19:32] Speaker 02:
So I could explain to the court how this time frame evolved.

[00:19:37] Speaker 02:
Initially, the report of misconduct is made by an inmate.

[00:19:41] Speaker 02:
It comes into the Bureau of Prisons.

[00:19:44] Speaker 02:
When something like that comes in, it goes to, first of all, the Bureau of Prisons Department of Internal Affairs.

[00:19:52] Speaker 02:
And that was done

[00:19:53] Speaker 02:
The referral to internal affairs is done December 6, 2012.

[00:20:00] Speaker 02:
It takes about a month to go from internal affairs then to the Office of Inspector General.

[00:20:06] Speaker 02:
And it only goes to the Office of Inspector General because there's possible criminal activity on the part of the officer.

[00:20:17] Speaker 02:
And that's why it goes to the Office of Inspector General.

[00:20:21] Speaker 02:
Now, once it gets to the Office of Inspector General, they take seven months to conduct their investigation.

[00:20:28] Speaker 02:
The summary of investigation is in our appendix.

[00:20:33] Speaker 02:
And what it points out is the number of people and the individuals interviewed, the people that they tried to interview that refused to give interviews, the subpoenas to all the telephone companies that then had to be responded to.

[00:20:46] Speaker 02:
And these phone records come back.

[00:20:50] Speaker 02:
And they show, for his cell phone, they show every single call on the cell phone.

[00:20:55] Speaker 02:
They show when the time, the time of the call, when it started, when the call ended, the duration of the call.

[00:21:02] Speaker 02:
And then they had to go through those calls.

[00:21:05] Speaker 03:
So that's 210 days.

[00:21:07] Speaker 03:
Excuse me?

[00:21:08] Speaker 03:
That's seven months is 210 days.

[00:21:11] Speaker 03:
Yes.

[00:21:12] Speaker 03:
Yes, Your Honor.

[00:21:12] Speaker 03:
That's after it's been, that's at the IG's office.

[00:21:16] Speaker 03:
A certain amount of time was used up at the internal affairs, right?

[00:21:20] Speaker 02:
30 days to get it to the IG, and then seven months at the IG's office.

[00:21:26] Speaker 02:
And after the IG does all this investigation... They still have another thousand days to... Yes, and they have to itemize, they have to compare the calls and find the calls that go to the... Okay, but this is during the seven-month period.

[00:21:41] Speaker 03:
Right, they have to show that... This is all trying to decide whether a criminal act occurred?

[00:21:45] Speaker 03:
Well, yes, they do this in cooperation with the Assistant U.S.

[00:21:49] Speaker 03:
Attorney's Office.

[00:21:50] Speaker 03:
No, but that's the focus of the attention of the IG's office is whether there's been a criminal offense.

[00:21:54] Speaker 02:
Correct.

[00:21:55] Speaker 03:
Correct.

[00:21:56] Speaker 03:
And that's being very careful to make certain that they don't charge someone with a criminal offense when they shouldn't.

[00:22:01] Speaker 02:
Correct.

[00:22:02] Speaker 01:
Correct.

[00:22:02] Speaker 01:
OK, so that's all done.

[00:22:03] Speaker 01:
You still have another 1,000 days.

[00:22:04] Speaker 01:
What happens then?

[00:22:05] Speaker 02:
OK.

[00:22:07] Speaker 02:
I would just point out that before I get to the next period, what the collective bargaining agreement says is that you may not propose

[00:22:16] Speaker 02:
any discipline at all while an investigation is pending.

[00:22:20] Speaker 02:
I got that.

[00:22:20] Speaker 01:
We still have 1,000 days left.

[00:22:22] Speaker 02:
Right.

[00:22:22] Speaker 02:
After that, there is an extensive review period.

[00:22:26] Speaker 02:
The report of the IG doesn't tell you what charges to bring.

[00:22:31] Speaker 02:
Somebody has to analyze it and decide.

[00:22:34] Speaker 01:
So who's analyzing it at this point?

[00:22:35] Speaker 02:
The captain.

[00:22:36] Speaker 02:
It's the captain's responsibility to analyze and decide which charges do we wish to

[00:22:43] Speaker 03:
bring, and what is the conclusion of the IG's report is we're not going to refer to this for criminal prosecution.

[00:22:49] Speaker 03:
Correct.

[00:22:50] Speaker 03:
That's their sign-off.

[00:22:52] Speaker 03:
And then they hand everything over to the captain and say, if you want to do something, it's up to you.

[00:22:58] Speaker 03:
Right.

[00:22:59] Speaker 02:
Right.

[00:22:59] Speaker 02:
And the IG investigator testified before the arbitrator that he made no recommendations.

[00:23:06] Speaker 02:
And so then it's up to the captain to decide what the charges are.

[00:23:10] Speaker 02:
So it takes time for the captain to go through this report.

[00:23:14] Speaker 02:
I will point out that the OIG report... Three years?

[00:23:17] Speaker 02:
Excuse me?

[00:23:18] Speaker 01:
Three years to go through the report?

[00:23:24] Speaker 02:
I'm not suggesting it took the captain three years to get through it.

[00:23:28] Speaker 02:
But there is a review process.

[00:23:30] Speaker 02:
There is a... I did want to point out... When was the warden changed?

[00:23:35] Speaker 02:
The warden.

[00:23:36] Speaker 03:
There are two warden changes, right?

[00:23:38] Speaker 02:
There are two warden changes.

[00:23:40] Speaker 02:
The turnover, Warden Babcock leaves in approximately December of 2014.

[00:23:46] Speaker 02:
Typically, does the captain talk with the warden about this?

[00:23:55] Speaker 02:
We have the testimony.

[00:23:56] Speaker 02:
I mean, the captain's sitting down there and the warden is his boss, right?

[00:24:00] Speaker 02:
We have the testimony from warden Pierce.

[00:24:03] Speaker 02:
And Warden Pierce testified as to the transition meeting that I already went through, and he testified that when he got to the job in January 2015 and before the proposal was issued by the captain in July of 2015, at some point the captain told him what he was going to do and then the proposal comes out.

[00:24:27] Speaker 02:
But to explain, Warden Pierce talked about the internal review process.

[00:24:32] Speaker 02:
The captain

[00:24:33] Speaker 02:
It's his responsibility to make the charges.

[00:24:36] Speaker 02:
He makes the charges out of all of the allegations.

[00:24:41] Speaker 02:
He decides what he wants to go forward with.

[00:24:44] Speaker 02:
And in this case, he presumably reviewed it.

[00:24:50] Speaker 02:
But what Borden Pierce explains is that there's an interchange between the human resource manager and the captain.

[00:24:58] Speaker 02:
The captain has to work with that human resource manager,

[00:25:03] Speaker 01:
come up with a... So are we supposed to assume that the captain sat on this for three years and never recommended to either of the other two earlier wardens that they take a particular action?

[00:25:19] Speaker 03:
The... Well, how do we know?

[00:25:21] Speaker 03:
I mean, if there was personnel being changed at the warden level, and if the captain typically might be talking to his boss, the warden, about disciplinary problems in the prison,

[00:25:32] Speaker 03:
Maybe there's a back and forth, and there may be other cases that are being considered, and they're trying to balance all this out.

[00:25:38] Speaker 02:
And we don't know any of that, right?

[00:25:40] Speaker 02:
No, you don't know any of that.

[00:25:42] Speaker 02:
But what Warden Pierce did testify to is that there's an internal review process.

[00:25:48] Speaker 02:
The proposal decision, whatever decision is being contemplated, has to go to the regional office of the Human Resources Branch, and then it goes to the national office of the Human Resources Branch.

[00:26:01] Speaker 02:
And eventually, the decision goes out.

[00:26:05] Speaker 02:
Now, in terms of, there's been no showing of any prejudice.

[00:26:10] Speaker 02:
There was never a request for these other individuals to testify.

[00:26:14] Speaker 02:
And what is required under Cornelius versus Nutt is a demonstration of prejudice.

[00:26:21] Speaker 02:
And there was no such demonstration before the arbitrator.

[00:26:25] Speaker 02:
I would just want to say a few words about

[00:26:29] Speaker 02:
the nature of the wrongdoing in this case, when Mr. Villarreal finally admitted that he engaged in this misconduct after denying it under oath to the Office of Inspector General.

[00:26:44] Speaker 02:
And then he finally admitted it after hearing the testimony of Warden Pierce that nothing he said to the Inspector General made it.

[00:26:52] Speaker 02:
That one of the charges for removing him wasn't that he was untruthful.

[00:26:55] Speaker 02:
That's true.

[00:26:56] Speaker 02:
That's true.

[00:26:57] Speaker 02:
It was because of the cell phone calls.

[00:27:00] Speaker 02:
But what I wanted to point out, and Warden Pierce testified to this in his testimony, was the reason we have these rules in the prisons is because we don't want correctional officers manipulated by inmates.

[00:27:15] Speaker 02:
And the ironic thing in this case is that when Mr. Villarreal finally told the truth to the arbitrator, what he said was, his excuse was,

[00:27:26] Speaker 02:
that I made these telephone calls.

[00:27:29] Speaker 02:
And I made them because at Houston, these inmates sometimes don't get appropriate medical treatment.

[00:27:36] Speaker 02:
And the inmates wanted me to call their friends and relatives and let them know that they needed medical treatment and that their relatives better come up and visit them.

[00:27:46] Speaker 02:
Well, what that shows, ironically, is that this officer was susceptible to the very dangers that the warden was concerned about.

[00:27:54] Speaker 02:
He was susceptible to being manipulated by the inmates and violating prison rules and regulations, just as the warden was very much concerned about.

[00:28:08] Speaker 02:
I think I might be over my time if you are.

[00:28:11] Speaker 02:
Thank you.

[00:28:19] Speaker 00:
Hello again.

[00:28:20] Speaker 00:
In regards to what the agency's counsel has argued before you, we are getting our brief, but I want to bring to your attention that at no time has the agency shown why Warden Babcock never issued a discipline during his tenure.

[00:28:41] Speaker 00:
They haven't shown why it was not available.

[00:28:45] Speaker 00:
They haven't shown that this process

[00:28:48] Speaker 00:
under Mr. Babcock was not completed.

[00:28:51] Speaker 00:
And in any event, the captain, even though the wardens changed, the captain was the same.

[00:28:57] Speaker 00:
There was no change of the first line supervisor for the purposes of issuing a discipline.

[00:29:06] Speaker 03:
Well, but that means that the captain has to have recommended removal.

[00:29:10] Speaker 03:
That is correct.

[00:29:11] Speaker 00:
That is correct.

[00:29:12] Speaker 00:
For the purposes of that letter that was issued in March 2015,

[00:29:18] Speaker 00:
which was the first letter.

[00:29:19] Speaker 03:
So are we presumed that his view from the get-go from day one of the 1265 was that removal was appropriate?

[00:29:28] Speaker 00:
Well, it seems like the first decision or the first intention was to suspend him for 30 days.

[00:29:36] Speaker 03:
But that's something.

[00:29:37] Speaker 03:
No, that wasn't the captain.

[00:29:39] Speaker 03:
We don't know who wrote the 30-day suspension line.

[00:29:43] Speaker 00:
That is correct.

[00:29:44] Speaker 00:
But usually the draft is prepared for the captain, the immediate supervisor's signature.

[00:29:50] Speaker 01:
Right, it has to go up the line.

[00:29:51] Speaker 00:
Exactly, exactly.

[00:29:52] Speaker 01:
So what your implication is is that the captain once recommended something lighter and then later recommended something heavier?

[00:30:01] Speaker 00:
Under different wardens.

[00:30:02] Speaker 00:
And the agency has not shown that why that happened.

[00:30:07] Speaker 00:
And the problem is that the people who had the knowledge had already retired at the time of the hearing

[00:30:13] Speaker 00:
So there are all these questions as to why and these hearsays.

[00:30:18] Speaker 00:
And at the end of the day, we have the termination of an employee.

[00:30:21] Speaker 01:
Did you make the argument in front of the arbitrator that, in fact, you were prejudiced by the retirements?

[00:30:29] Speaker 00:
We made the argument to the arbitrator.

[00:30:31] Speaker 00:
We will never know because we don't have the benefit of the testimonies of these other people because they are retired.

[00:30:38] Speaker 00:
We cannot call them as witnesses.

[00:30:39] Speaker 00:
We presented that seat.

[00:30:41] Speaker 03:
And the unions never challenged that practice, right?

[00:30:45] Speaker 03:
It's been a longstanding practice of the Bureau of Prisons that once somebody is retired, they're treated as never having been around.

[00:30:52] Speaker 00:
We have challenged that.

[00:30:55] Speaker 03:
Have you challenged that in court?

[00:30:58] Speaker 00:
Before the arbitrators, I recently had a case where I asked the agency to produce an employee that had retired, and they didn't.

[00:31:07] Speaker 03:
But you didn't ask that here.

[00:31:08] Speaker 00:
No, we didn't.

[00:31:10] Speaker 00:
We didn't.

[00:31:11] Speaker 00:
Did you say they did not produce them?

[00:31:13] Speaker 00:
They never produced the employees, only when the person benefits them.

[00:31:18] Speaker 00:
And I had a recent case in Miami that there was a retired warden, and they brought the warden from retirement.

[00:31:26] Speaker 00:
So we have some cases that when they benefit the agency, they bring the retired employee.

[00:31:32] Speaker 00:
And in this case, the persons that were involved in the decision-making process

[00:31:37] Speaker 00:
Because listen, Pierce came when everything was said and done.

[00:31:42] Speaker 00:
The persons that were dealing with the employee during the period of time when the facts took place were retired.

[00:31:50] Speaker 00:
But they were the people that had the day-to-day interaction and knew the employee.

[00:31:55] Speaker 00:
Because as you notice from the brief, this is his first infraction.

[00:31:59] Speaker 00:
He never had a problem in the institution, not even before or while he was at the phone monitor.

[00:32:05] Speaker 01:
Yeah, but this is a lot of infractions.

[00:32:06] Speaker 01:
I mean, it's not like one infraction.

[00:32:08] Speaker 01:
It's when you say first infraction, it's like a whole host of infractions.

[00:32:10] Speaker 00:
Well, but when you look at it, Your Honor, that's one of the arguments that we have, the stacking of the deck.

[00:32:18] Speaker 00:
And actually, when I was again preparing for this argument, I was like, I wonder if Mr. Villareal gave cookies to other employees.

[00:32:27] Speaker 00:
Or I wonder if Mr. Villareal allowed other inmates to take showers early.

[00:32:33] Speaker 00:
We don't know, because they only focus on these employees

[00:32:36] Speaker 00:
that the phone calls were made on their behalf.

[00:32:42] Speaker 00:
So when you look at the use of government computer, that wasn't sustained.

[00:32:48] Speaker 00:
The fact that there was a picture, well, he brought a picture of his daughter.

[00:32:52] Speaker 00:
The fact that the office was left open, that is standard operating procedure, because we had an inspection of his daughter.

[00:33:02] Speaker 01:
You're out of time.

[00:33:03] Speaker 01:
I'm sorry.

[00:33:04] Speaker 01:
That's OK.

[00:33:05] Speaker 01:
That's OK.

[00:33:06] Speaker 01:
All right.

[00:33:06] Speaker 01:
The case will be submitted.

[00:33:07] Speaker 01:
Thank you.

[00:33:08] Speaker 00:
Thank you, Your Honor.

[00:33:08] Speaker 00:
Have a wonderful day and wonderful weekend.