[00:00:00] Speaker 04:
In 1979, Watson vs. Brewer of Prisoners.

[00:00:42] Speaker 04:
Okay, Ms.

[00:00:43] Speaker 04:
Mendoza.

[00:00:47] Speaker 00:
Good morning.

[00:00:48] Speaker 00:
May it please the court?

[00:00:51] Speaker 00:
The first issue I want to address is the jurisdictional issue that was raised by the Bureau of Prisons in this case.

[00:01:00] Speaker 00:
When we decided to file an appeal, we decided to come before this court even though it meant waiving

[00:01:07] Speaker 00:
the discrimination claims.

[00:01:09] Speaker 00:
But then why did you brief nothing but discrimination claims in your appeal?

[00:01:13] Speaker 00:
Because we wanted the court to have the background of all the allegations that were made before the arbitrator.

[00:01:22] Speaker 03:
So if you file the 15C and you want to waive all your discrimination claims, so you're saying that things like retaliation are not on the table, that discrimination is not on the table, so what is the

[00:01:35] Speaker 03:
substantive basis for your appeal?

[00:01:38] Speaker 00:
My appeal is just a sufficient cost.

[00:01:41] Speaker 00:
Is what?

[00:01:42] Speaker 00:
Just that the agency failed to present just a sufficient cost to terminate Mr. Watson.

[00:01:50] Speaker 00:
It was not for the efficiency of service when the agency terminated Mr. Watson.

[00:01:55] Speaker 00:
We presented all the discrimination journey that Mr. Watson went through to show that

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even when the agency expressed in the termination letter that this position that Mr. Watson was supposed to be working on.

[00:02:17] Speaker 01:
All due respect, you're bound by your blue brief.

[00:02:20] Speaker 01:
Turn to page 17 of your blue brief where you lay out in your penultimate page the relief that you seek this court grant you.

[00:02:28] Speaker 01:
You start at the top with the word wherefore in bold.

[00:02:31] Speaker 01:
Yes.

[00:02:32] Speaker 01:
You then say, the union is presented beyond the proponents of the evidence that the grievant was wrongfully terminated in violation of the ADA and Rehabilitation Act.

[00:02:41] Speaker 01:
Then the next sentence, which starts the next paragraph, that the agency engaged in a prima facie case of disability discrimination, that the grievant was denied reasonable accommodation, et cetera, et cetera.

[00:02:53] Speaker 01:
You have the word discriminations throughout your brief and in your prayer for relief from this court.

[00:02:59] Speaker 01:
That is your argument to this court.

[00:03:02] Speaker 01:
We can't hear that argument or any case that contains that argument.

[00:03:06] Speaker 01:
That is not just in the background section.

[00:03:08] Speaker 01:
It's throughout your entire brief, including in your prayer for relief.

[00:03:12] Speaker 01:
That means we don't have jurisdiction over your case.

[00:03:14] Speaker 00:
If you continue reading in that prayer of relief, we also included that the agency violated the just cause clause.

[00:03:22] Speaker 01:
Yeah, you think they did a lot of things wrong.

[00:03:24] Speaker 01:
And if you hadn't alleged discrimination, we could get to those other things.

[00:03:28] Speaker 01:
But you did throughout the brief.

[00:03:31] Speaker 04:
I think the problem is that when you say there wasn't just cause, you're saying there wasn't just cause because there was a violation of the Rehabilitation Act, which sounds very much like asking us to decide the Rehabilitation Act.

[00:03:46] Speaker 00:
I understand that.

[00:03:47] Speaker 00:
It's a mixed question.

[00:03:49] Speaker 00:
And the reason why we didn't file with the MSPD is because the MSPD has only one member and we wanted to solve this situation and that's why we presented.

[00:03:58] Speaker 00:
Why couldn't you have gone to the district court?

[00:04:01] Speaker 00:
We have had cases with the district court.

[00:04:03] Speaker 00:
I am not admitted in the court of West Virginia.

[00:04:07] Speaker 00:
And I was handling a case recently in West Virginia, and it was extremely costly.

[00:04:15] Speaker 00:
And we didn't have the funds to assume the legal representation of this other case.

[00:04:22] Speaker 00:
Mr. Watson spent close to $35,000 in his EEO case.

[00:04:28] Speaker 00:
before I assume legal representation.

[00:04:30] Speaker 03:
I have a lot of sympathy for those points.

[00:04:33] Speaker 03:
I understand, but I'm answering your question.

[00:04:35] Speaker 03:
Your whole basis for your argument is that their explanation for why they terminated him was a pretext, because what they really were doing was discriminating against him.

[00:04:45] Speaker 03:
That is a claim over which we have no jurisdiction, even if you tie the two together.

[00:04:51] Speaker 03:
Mixed questions.

[00:04:53] Speaker 03:
Don't go to us.

[00:04:53] Speaker 00:
You have to go to the district court, as much as you may not like the district court.

[00:04:58] Speaker 00:
No, no, it's not that I don't like the district court.

[00:05:00] Speaker 00:
It's just that the client did not have the funds in order to fulfill the needs of filing the case.

[00:05:10] Speaker 00:
But in any event, the reason why we present the just and sufficient costs is because in this case, the agency in its termination letter said that the position that Mr. Watson was supposed to be occupying in the factory was

[00:05:28] Speaker 00:
critical for the operation of the institution.

[00:05:31] Speaker 03:
They offered him on a different position, one he said before that he wanted and he didn't take it, right?

[00:05:37] Speaker 03:
I mean, that's what they said.

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We tried to accommodate him.

[00:05:39] Speaker 03:
He wouldn't take it.

[00:05:41] Speaker 00:
Right.

[00:05:42] Speaker 00:
But I want to address your attention to a position that we presented in the arbitration during the case, and it was the cook supervisor position in August 2013.

[00:05:53] Speaker 00:
That position

[00:05:56] Speaker 00:
was requested by Mr. Watson and the agency never acted upon that position.

[00:06:03] Speaker 00:
In the hearing, the warden testified that he didn't choose Mr. Watson even though he was BQ'd because he wanted the person that was most qualified, even when Mr. Watson made the BQ list.

[00:06:19] Speaker 00:
Now, I bring that to your attention because the arbitrator

[00:06:24] Speaker 00:
in his 125-page award went through each and every email document, et cetera, except the request of reasonable accommodation that Mr. Watson made in August 2013.

[00:06:39] Speaker 00:
And in August 2013, the agency had the opportunity to reassign Mr. Watson within that institution.

[00:06:49] Speaker 00:
We're claiming in our brief

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that it was in retaliation and they didn't follow the Rehabilitation Act.

[00:06:57] Speaker 00:
But when we argue the just cause, we don't know what really went on on the warden's mind because, of course, no one is going to admit he's bickering too much or I don't like his temper or I don't want him in this institution anymore.

[00:07:17] Speaker 00:
The truth of the matter is that they didn't want him in the institution anymore because the same position that the warden had in Gilmer where Mr. Watson worked in August 2013 that the warden didn't give him was the same position that they offered him later in April 2014.

[00:07:36] Speaker 00:
So it is obvious that the agency wanted him outside of the FCI Gilmer.

[00:07:42] Speaker 00:
Why?

[00:07:44] Speaker 00:
I don't know the answer to that question.

[00:07:46] Speaker 00:
I could argue that it was his bickering.

[00:07:48] Speaker 00:
I could argue that his temper.

[00:07:51] Speaker 00:
I could argue that they didn't want to continue with the disciplinary procedures that they were having with him within FCI Gilmer.

[00:08:01] Speaker 00:
Maybe they thought that they were going to terminate him anyway based on the other disciplinary measures and they took that as the opportunity to terminate him.

[00:08:13] Speaker 00:
But the truth of the matter is that the same position that Mr. Watson was offered 90 miles away in Hazelton was the same position that a year back in August 2013, the position that he applied for and he was supposed to get and didn't get because Wharton-Portu selected another employee.

[00:08:34] Speaker 00:
When we go through the award in this case, I have reviewed it many times.

[00:08:40] Speaker 00:
And there is not a single reference by the arbitrator of that August 2013 position.

[00:08:47] Speaker 00:
And of course, he couldn't make reference to that position because in page 118 of his award, he admits that if Mr. Watson was best qualified, then the agency had to give him that position.

[00:09:09] Speaker 00:
When I noticed that there was no reference whatsoever to the August 2013 cook supervisor position in Gilmer, then I realized that he couldn't make reference to that position because it would defeat his argument as to why there was no kind of.

[00:09:28] Speaker 03:
If we conclude that this is at its core either a pure discrimination claim or a mixed case, do you want us

[00:09:38] Speaker 03:
to transfer it or do you want us to dismiss it?

[00:09:41] Speaker 00:
Well, if you understand that, I would appreciate it that you transfer it.

[00:09:46] Speaker 04:
To the district court in West Virginia?

[00:09:48] Speaker 00:
Yes.

[00:09:49] Speaker 00:
We will do our best to, we need to, you know, we followed already the PHV procedure.

[00:09:57] Speaker 00:
I have been paying the dues every year because in West Virginia, you have to pay the local dues in order to be able to litigate in federal court.

[00:10:06] Speaker 00:
And of course, these are cases that are on a contingency basis, and it's not paid by the employee.

[00:10:15] Speaker 00:
And that's the reason why we chose this firm, because Mr. Robbins is the only member of the MSPB.

[00:10:23] Speaker 00:
And this employee has been dealing with this even before, because it's our argument that even before 2012, when he made the written, made

[00:10:33] Speaker 00:
You're waiting for a thousand cases from there once they ever get there.

[00:10:38] Speaker 00:
I understand that.

[00:10:39] Speaker 00:
I was in the judicial conference and I was amazed at the amount of cases that your honor mentioned as to how many cases they have in backlog.

[00:10:49] Speaker 00:
But that was really the reason we wanted to have an opportunity to bring the case before this court.

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understanding that we, and the client signed the form.

[00:11:02] Speaker 00:
I advised him of what it was that we were doing and the reason why we were doing it.

[00:11:08] Speaker 04:
The problem is not just that the

[00:11:30] Speaker 04:
things more difficult rather than easy.

[00:11:33] Speaker 00:
Yes, I used to be an Assistant U.S.

[00:11:35] Speaker 00:
Attorney in Puerto Rico years ago, and I, you know, as an Assistant U.S.

[00:11:40] Speaker 00:
Attorney, I had all the statutes and regulations to be able to request the dismissal because I know how intricate the procedures are.

[00:11:51] Speaker 00:
And so that's why this is my first time before this Court.

[00:11:57] Speaker 01:
For clarification, if we transfer it, there's more than one district court in West Virginia, northern and southern.

[00:12:03] Speaker 00:
We were in the northern.

[00:12:05] Speaker 00:
FCI Gilmer is in the northern.

[00:12:09] Speaker 00:
But the other two arguments are really arguments that are procedural in nature.

[00:12:15] Speaker 00:
We just included them because it was really surprising.

[00:12:19] Speaker 03:
You may remember that this court at one point thought that a 15C would allow us to separate out

[00:12:25] Speaker 03:
the discrimination issues from the other issues and just handle the one and the Supreme Court disagreed with us.

[00:12:31] Speaker 00:
I understand that.

[00:12:32] Speaker 00:
And I understand that there are cases in which you can have that discretion, but I understand that in this case I was trying to really get closure with the just cause argument because it was both alleging the grievance and it was also addressed in the award by the arbitrator.

[00:12:55] Speaker 00:
And therefore, we wanted to bring that to the court's attention, even though we do understand that the main gift could be under the Rehabilitation Act, but we also have under the contract the Just Cause Violation.

[00:13:13] Speaker 00:
That will be all.

[00:13:14] Speaker 00:
If you have any questions.

[00:13:16] Speaker 00:
Thank you.

[00:13:16] Speaker 00:
Thank you, Judge.

[00:13:19] Speaker 04:
Is Donna here?

[00:13:27] Speaker 03:
Do we have the option to transfer it if we conclude that we don't have jurisdiction?

[00:13:31] Speaker 02:
This court could transfer the case to the District of West Virginia.

[00:13:35] Speaker 02:
There are some timeliness concerns with respect to that because this appeal was taken more than 30 days after the arbitration decision.

[00:13:43] Speaker 02:
I believe the arbitration decision was dated March 9th and I think the notice of appeal was, excuse me, March 6th, and the notice of appeal was April 25th.

[00:13:53] Speaker 03:
I got so we send them to the district court and it costs a ton of money and then you argue that it's untimely and so the district court has to throw it out.

[00:14:01] Speaker 02:
That is a concern.

[00:14:02] Speaker 02:
Now we can't of course here speak to what the district court would say about the timeliness concerns and whether or not Mr. Watson could establish good cause to whether that could be told and whether Mr. Watson could establish good cause.

[00:14:16] Speaker 04:
As I understand it there are different time limits for going to district court

[00:14:20] Speaker 04:
in forgoing to this court, is that, am I correct about that?

[00:14:23] Speaker 02:
Yes, Your Honor.

[00:14:24] Speaker 04:
It's 30 days for the district court and 60 for this court, is that what it is?

[00:14:28] Speaker 04:
Yes, Your Honor, and also I should... And just so we know what the facts are, should she file a petition for review with this court

[00:14:37] Speaker 04:
within the 60-day limit, but not within the 30-day limit?

[00:14:41] Speaker 04:
Is that what you're saying?

[00:14:42] Speaker 02:
That is my understanding of what happened, Your Honor.

[00:14:44] Speaker 03:
Additionally... How many days did you say it was?

[00:14:47] Speaker 03:
31 or 32?

[00:14:48] Speaker 02:
I believe it was... No, no, it's longer than that.

[00:14:50] Speaker 02:
It was March 6th, and then I think it was April 25th.

[00:14:54] Speaker 02:
So that would be... The court is testing my math on the fly.

[00:15:00] Speaker 02:
Got it, though.

[00:15:00] Speaker 02:
I can do that quickly.

[00:15:01] Speaker 02:
It would be more than 30 days.

[00:15:04] Speaker 02:
You know, the statutory scheme is complex.

[00:15:07] Speaker 02:
Section 7121D would have permitted Mr. Watson to appeal the arbitration decision to the board, you know, pursuant to... To what board?

[00:15:17] Speaker 02:
To the Merit Systems Protection Board.

[00:15:18] Speaker 02:
And we understand that there is concern right now with no quorum.

[00:15:23] Speaker 02:
You know, there is one case that we cited, and it is an unreported case from the District of Maryland, which is the Moreno case.

[00:15:28] Speaker 02:
And we apologize.

[00:15:29] Speaker 02:
There was a typographical error.

[00:15:30] Speaker 02:
That case was not from the Fourth Circuit.

[00:15:31] Speaker 02:
It was from the District of Maryland.

[00:15:33] Speaker 02:
But that case laid out this process and some courts have found that a failure to file before the board does constitute a failure to exhaust administrative remedy.

[00:15:45] Speaker 02:
So we say this just to explain where we are at.

[00:15:49] Speaker 04:
We would not have necessarily... So the two arguments that you could make if we transferred a district court, one that they hadn't exhausted

[00:15:58] Speaker 04:
their administrative remedy so they couldn't go to the district court, and second, that the filing was on time?

[00:16:05] Speaker 02:
Yes, Your Honor.

[00:16:05] Speaker 03:
We, of course, can't speak to what the court would ultimately decide, and we would not necessarily... Well, they would have had to file... You think they should have filed before the board and then sit there and wait for years until the board could possibly have people that can act on it.

[00:16:21] Speaker 02:
Well, it potentially...

[00:16:23] Speaker 02:
District of West Virginia could decide that.

[00:16:27] Speaker 03:
We can't say exactly whether or not... But you proceed that had they filed before the board, they'd be still sitting there because there's no board to act.

[00:16:35] Speaker 02:
That is right, Your Honor.

[00:16:36] Speaker 02:
That is right.

[00:16:36] Speaker 02:
That is right.

[00:16:41] Speaker 02:
Unfortunately, as we explained in our brief, Mr. Wasson's appeal is a claim for failure to accommodate to disability in violation of the Rehabilitation Act, and he also

[00:16:51] Speaker 02:
sets forth two defenses to his termination.

[00:16:54] Speaker 02:
One, that the agency failed to follow its policies with respect to reasonable accommodation in violation of the Rehab Act, and that they retaliated against him for prior protected activity also in violation of the Rehab Act.

[00:17:06] Speaker 02:
All of those claims and defenses are, of course, discrimination claims that cannot be considered by this court.

[00:17:13] Speaker 04:
Are there cases dealing with the time limitation?

[00:17:17] Speaker 04:
Has that issue been decided?

[00:17:21] Speaker 04:
There's a timely petition for review in this court and the case is transferred.

[00:17:27] Speaker 04:
Are there cases saying, well, you can't proceed in the district court because you didn't seek review within 30 days?

[00:17:35] Speaker 02:
The Supreme Court in a very old case, and the name escapes me, Your Honor, at this moment, did say that discrimination cases implied that they could be equitably told.

[00:17:44] Speaker 02:
The deadline could be equitably told in discrimination cases.

[00:17:47] Speaker 02:
We are not aware of a case in the Fourth Circuit that has definitively said that discrimination cases that come to the board, the deadline would be told.

[00:18:00] Speaker 02:
There is a question, of course, if the deadline could be equitably told, if it's permissible to do so, would Mr. Watson establish good cause for the timeliness?

[00:18:09] Speaker 02:
Of course, that would be a question for that court to decide and for Mr. Watson to show.

[00:18:15] Speaker 03:
If Mr. Watson had waived all of these... There is case law that says you don't have to exhaust administrative remedies, generally, not necessarily in the MSBB context, but I'm familiar with a lot of case law that says even an administrative exhaustion rule doesn't apply if you can establish that it would have been completely futile to attempt.

[00:18:38] Speaker 03:
to do so.

[00:18:39] Speaker 02:
Right.

[00:18:39] Speaker 02:
So there are arguments Mr. Watson would have.

[00:18:42] Speaker 02:
We are simply just laying out our understanding of the timeliness concerns and the other concerns that may arise if the case were to be transferred.

[00:18:49] Speaker 02:
If Mr. Watson had waived all of his discrimination claims and defenses, there is substantial evidence in the record to support Mr. Watson's termination for medical inability to perform, and that termination was reasonable.

[00:19:04] Speaker 04:
Okay.

[00:19:04] Speaker 04:
Any further questions?

[00:19:05] Speaker 04:
All right.

[00:19:06] Speaker 04:
Thank you.

[00:19:11] Speaker 04:
Mendoza, do you have anything further?

[00:19:13] Speaker 00:
No, thank you so much for your attention.

[00:19:16] Speaker 00:
Okay, thank you.

[00:19:17] Speaker 04:
May both counsel faces submitted.