[00:00:00] Speaker 04:
Our next case argument is 24-1496, Harris versus DOJ.

[00:00:09] Speaker 04:
Mr. Burns, please proceed.

[00:00:10] Speaker 01:
May it please the court.

[00:00:14] Speaker 01:
We are here on a couple of things that I think are relevant to what happened here.

[00:00:19] Speaker 01:
The issue in this case is whether the administrative law judge in assessing evidence in a whistleblower case had substantial evidence that

[00:00:29] Speaker 01:
Two things, that the agency didn't take actions that were based on protective disclosures, and secondly, whether she applied the CAR factors appropriately and evaluated that evidence.

[00:00:42] Speaker 01:
I think it's important to focus on what was actually the fundamental issue that triggered what happened here.

[00:00:50] Speaker 01:
The DEA conducts polygraph examinations, and the vein of those examinations

[00:00:57] Speaker 01:
is when a polygraph examiner calls what's called countermeasures.

[00:01:00] Speaker 01:
In other words, measures that are designed to defeat the autonomic responses so that the test can be thwarted.

[00:01:06] Speaker 01:
As the evidence shows and was testified consistently, the DEA was the only agency that accepted significant responses and other things that would, and other agencies invalidate polygraph examinations.

[00:01:21] Speaker 01:
Brent Barnes, the former supervisor of the section, testified that there was heavy pressure at the highest levels of the agency to stop the calling of countermeasures in order to allow more applicants to come in and enter the ranks, that they had a shortage of people.

[00:01:37] Speaker 01:
My client's sin, as is consistent throughout this, because I think it's important to focus on this, is that she called countermeasures.

[00:01:46] Speaker 01:
And she called them with more frequency than others.

[00:01:49] Speaker 01:
As Brent Barnes says, she did more polygraphs than the other examiner.

[00:01:53] Speaker 01:
She got more admissions where people actually admitted that they had done something that would support the county measures.

[00:02:00] Speaker 01:
And she was in the most heavily trafficked section of the DEA in the Washington region.

[00:02:07] Speaker 01:
What is missing from the judge's decision is the judge focuses heavily on this, and then I'll go back to the protected disclosure.

[00:02:14] Speaker 01:
The judge ignores the fact that it's not

[00:02:18] Speaker 01:
countermeasures that my client calls that would support a finding that she was doing something wrong and needing training.

[00:02:25] Speaker 01:
It was whether quality control confirmed those countermeasures.

[00:02:30] Speaker 01:
Under the DEA polygraph manual, when I take an examination, it cannot be final to two quality control individuals agree with its findings.

[00:02:39] Speaker 04:
Before we can get to whether she should have been sent for training, you have to demonstrate that there was a protected disclosure made prior to the request that she get training.

[00:02:51] Speaker 04:
Request for training is not generally a terrible thing.

[00:02:55] Speaker 04:
I mean, we can all use more training, but you seem to think it is, but so what

[00:03:01] Speaker 04:
Is the protected disclosure for which she was retaliated by offering being offered additional training.

[00:03:10] Speaker 01:
It wasn't just the training that that's the I'm trying to lay the framework that the original problem she had was was her calling account measures.

[00:03:17] Speaker 01:
The initial protective disclosure she made was she recorded and got an admission of the following statement during a polygraph examination.

[00:03:25] Speaker 04:
I know the statement and I know it's salacious and it's terrible and I understand why it would have made her blood boil and made her want to do something about the statement.

[00:03:33] Speaker 04:
For sure, I get all that so you don't need to shock your conscience with all of it because we all read the facts and we know the facts.

[00:03:41] Speaker 04:
good on her for wanting to do something to put a stop to what she learned in that polygraph, because that's just horrific.

[00:03:47] Speaker 04:
And nobody would disagree with that.

[00:03:49] Speaker 04:
But the question is, was the statement she made about that a protected disclosure such that when they asked her to go for this training, she was being retaliated?

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

[00:04:00] Speaker 04:
So what was the statement?

[00:04:02] Speaker 04:
Are you telling me when she said report it to OPR or COO?

[00:04:07] Speaker 04:
That was the protected disclosure?

[00:04:08] Speaker 04:
What was the protected disclosure particularly?

[00:04:10] Speaker 01:
So Judge Moore, the factual context in which the protected disclosure is made is she goes to Toomey and says, and to Inessa McCaw Danielson says, I've had an admission of a pedophilic activity, pedophile.

[00:04:23] Speaker 04:
No, you had an admission of thoughts.

[00:04:25] Speaker 01:
No, no, that's why I say it's important to the exact statement.

[00:04:30] Speaker 04:
It doesn't matter, irrelevant.

[00:04:32] Speaker 01:
But it wasn't about thoughts, it was about actual conduct.

[00:04:37] Speaker 04:
I didn't see that in the record, but move on.

[00:04:39] Speaker 01:
She did testify to that, that it was more than just thoughts.

[00:04:42] Speaker 01:
The thoughts language is interesting because she goes to Toomey and says, I've had this admission, we need to report this to OPR.

[00:04:50] Speaker 04:
And Emanuel said... No, she didn't say we have to report to OPR.

[00:04:53] Speaker 04:
What did she say?

[00:04:54] Speaker 04:
Precisely, because it's in the record and everybody agrees.

[00:04:57] Speaker 04:
There's no dispute over what she told Toomey needed to happen.

[00:05:01] Speaker 04:
There's no dispute.

[00:05:02] Speaker 04:
This record is clear.

[00:05:03] Speaker 01:
Wait, but you asked what... What did she say?

[00:05:06] Speaker 04:
What did she say to Toomey?

[00:05:07] Speaker 00:
Toomey, she said it needs to be reported to OPR.

[00:05:10] Speaker 00:
Or the Chief Counsel's office.

[00:05:13] Speaker 04:
She gave him two choices.

[00:05:14] Speaker 04:
She told her, because Toomey's a her, she told Toomey this needs to be reported to either

[00:05:20] Speaker 04:
CCO or OPR.

[00:05:23] Speaker 04:
And what did Tumi do?

[00:05:25] Speaker 01:
She went to the chief counsel's office.

[00:05:26] Speaker 04:
She went to CCO.

[00:05:27] Speaker 04:
She did exactly what Ms.

[00:05:30] Speaker 04:
Harris told her needed to happen.

[00:05:32] Speaker 01:
But it's not what Ms.

[00:05:34] Speaker 01:
Harris directs her.

[00:05:35] Speaker 01:
It's what her obligation was.

[00:05:37] Speaker 01:
OPR itself came back to Tumi two days later and said, this is a criminal admission.

[00:05:41] Speaker 01:
You should have come to us.

[00:05:42] Speaker 01:
Now that would trigger hostility from Tumi.

[00:05:47] Speaker 01:
And there's no evidence that too many actually went to chief counsel's office.

[00:05:50] Speaker 01:
She testified there's no email, there's no memorandum.

[00:05:53] Speaker 01:
But that's not the protected disclosure.

[00:05:55] Speaker 01:
Right.

[00:05:56] Speaker 04:
And that's the only thing you have that preceded the suggestion that she get some training.

[00:06:01] Speaker 04:
And there seem to be a lot of the reasons in the record why she might need that training and training, like I said, in and of itself.

[00:06:07] Speaker 04:
Like we see adverse actions for people getting fired, getting suspended.

[00:06:10] Speaker 04:
Training is not

[00:06:12] Speaker 04:
The same as those things.

[00:06:14] Speaker 01:
But Judge Moore, there's a couple of intervening acts before the remedial training, not refresher training.

[00:06:20] Speaker 01:
Two weeks after Toomey is lectured by OPR about having to report this, my client is sent to the WDO to an office.

[00:06:31] Speaker 04:
You say lectured by OPR about having to report this.

[00:06:33] Speaker 04:
I don't see anything in this record where OPR

[00:06:36] Speaker 04:
lectured your client.

[00:06:37] Speaker 04:
When you say it like that, it's as though she were reprimanded for not handling it right.

[00:06:42] Speaker 04:
Where in this record does it indicate that OPR somehow took action against Ms.

[00:06:46] Speaker 04:
Harris?

[00:06:47] Speaker 04:
You are completely overstating it.

[00:06:49] Speaker 04:
You've got a terrific set of facts.

[00:06:51] Speaker 04:
If you overstate them, you lose all credibility.

[00:06:54] Speaker 01:
I'm not trying to overstate the facts.

[00:06:55] Speaker 01:
I'm trying to lay a factual scenario where it does, that my client's reporting of the incident

[00:07:02] Speaker 01:
My client says this is a violation of law and she tells me to do something about it.

[00:07:09] Speaker 01:
The issue is whether Tumi, in getting that disclosure, decides that she's upset with my client and takes action against her.

[00:07:18] Speaker 01:
And the first action that Tumi takes is to immediately transfer her to an office that hasn't been used in 12 years, that doesn't have a computer, that's been flooded, and is miles away from where she's supposed to test.

[00:07:28] Speaker 01:
That happens within two weeks of this disclosure.

[00:07:33] Speaker 01:
And so focus... So let me get this straight.

[00:07:35] Speaker 04:
You actually think, because the board makes fact findings, and they didn't make this fact finding, you think it's reasonable to believe that your client goes to her supervisor and says, oh my God, I just had an admission from someone applying for a job

[00:07:55] Speaker 04:
that they are thinking of trying to have sex with their toddler.

[00:07:59] Speaker 04:
We have to report this.

[00:08:00] Speaker 04:
And you think her boss's reaction was to take an action against her?

[00:08:03] Speaker 04:
It defies credibility to think that when they had an actual admission of this,

[00:08:13] Speaker 04:
And she is simply reporting it and say, we've got to report this up the chain, which the boss then immediately did that that would be a protected disclosure that would cause them to want to take action against her.

[00:08:23] Speaker 04:
And the board found there was no evidence to support that.

[00:08:26] Speaker 04:
And I'm really struggling with how anyone could believe that that would be the set of facts.

[00:08:31] Speaker 01:
Because the testimony was in the record.

[00:08:33] Speaker 01:
that she did more than just ask Tumi.

[00:08:36] Speaker 01:
She went to Tumi and McCaw and said, have you reported it to OPR?

[00:08:41] Speaker 01:
That's what she actually said.

[00:08:43] Speaker 04:
When did she do that?

[00:08:44] Speaker 04:
Was that before or after the training?

[00:08:45] Speaker 01:
After the Chief Counsel conference.

[00:08:46] Speaker 04:
After the training date.

[00:08:48] Speaker 01:
No, no, not after training.

[00:08:49] Speaker 04:
You're claiming the adverse action was in part the training.

[00:08:53] Speaker 01:
No, I'm claiming that there was a whole series of adverse actions that began with the transfer to the WDO.

[00:08:59] Speaker 01:
continued through the false calling of countermeasures where there was no statistical evidence.

[00:09:04] Speaker 04:
Was she transferred out to the place with the flood before or after she complained about it not being reported to OPR?

[00:09:11] Speaker 01:
After.

[00:09:12] Speaker 04:
No.

[00:09:13] Speaker 04:
Yes.

[00:09:14] Speaker 04:
She went to Toomey.

[00:09:15] Speaker 04:
She told Toomey to report it.

[00:09:16] Speaker 04:
Toomey did report it.

[00:09:18] Speaker 04:
Toomey came back and told her even what the CCO said.

[00:09:22] Speaker 01:
And then she said it has to be reported to OPR.

[00:09:25] Speaker 01:
And she went and talked to Kevin Gaddy after that point.

[00:09:28] Speaker 01:
And Gaddy must have told OPR because OPR then told Tumi, you should have reported it to us.

[00:09:33] Speaker 01:
So my client wasn't satisfied with the chief counsel's response because the chief counsel's response was vague.

[00:09:40] Speaker 01:
It didn't address the issue.

[00:09:41] Speaker 01:
And my client felt that you have to actually report this to law enforcement, which is, in the end, what OPR actually did.

[00:09:49] Speaker 01:
And so, I think what's missing in the factual scenario is that there is a follow-up.

[00:09:53] Speaker 01:
She goes and she says, look, you gotta go to OPR.

[00:09:58] Speaker 01:
And she can't go to OPR herself because Tumi says you can't.

[00:10:01] Speaker 01:
Tumi never told her she couldn't go to OPR.

[00:10:03] Speaker 04:
There's nothing in this record, not even by your client saying that.

[00:10:06] Speaker 04:
Tumi said... Wait, did you just mistake something?

[00:10:09] Speaker 01:
No, Tumi said... Show me where in the record, show me where in the record... I would have to do a 28J, but... Your client said... Tumi said to her,

[00:10:17] Speaker 01:
We can't do anything about thoughts.

[00:10:19] Speaker 01:
And if you report this and make a position out of this, you could get sued.

[00:10:24] Speaker 01:
That's what Tumi told her.

[00:10:26] Speaker 01:
It wasn't just that I went to chief counsel.

[00:10:27] Speaker 01:
She said, not only can we not do anything about it, you can get in trouble if you push this.

[00:10:33] Speaker 01:
My client did push it.

[00:10:35] Speaker 01:
She went and talked to Gaddy after that conversation.

[00:10:38] Speaker 03:
I think I heard you say that, uh,

[00:10:41] Speaker 03:
OPR did report this examinee to law enforcement?

[00:10:44] Speaker 03:
Yes.

[00:10:44] Speaker 03:
Can you tell me where that is in the record?

[00:10:46] Speaker 01:
I believe that that was testified to by Ms.

[00:10:48] Speaker 01:
Harris that they followed up with the Virginia State Police, and it was referenced by Toomey herself.

[00:10:53] Speaker 01:
Can you tell me a page number where I could find it?

[00:10:56] Speaker 01:
Your Honor, I would have to dig through an 800-page record.

[00:10:59] Speaker 01:
All right.

[00:10:59] Speaker 01:
Well, on rebuttal, hopefully.

[00:11:00] Speaker 01:
Yes.

[00:11:02] Speaker 01:
So I think the thing is, is that the thing that's troubling... You're running out of time.

[00:11:07] Speaker 00:
What about the car factors?

[00:11:09] Speaker 00:
So on the car factors- Why isn't it just substantial evidence, the evaluation of the car factors?

[00:11:15] Speaker 01:
Because the judge discounted evidence.

[00:11:17] Speaker 01:
She didn't even acknowledge evidence.

[00:11:18] Speaker 00:
There's no reference, the most glaring evidence, there's two evidence that things could go, I think, and this is where the countermeasure- The decision looks pretty thorough, weighing a lot of different competing testimony and finding certain witnesses testifying in a very credible way.

[00:11:35] Speaker 00:
I mean, it makes it very hard

[00:11:38] Speaker 00:
for you to try to re-litigate everything up here at the appellate level.

[00:11:43] Speaker 01:
I agree, but I'm not trying to re-litigate.

[00:11:45] Speaker 01:
I'm trying to look at a record where the judge never allowed, she never allowed the agency, required the agency or had evidence of the statistical proof of the significant factor which led to the agency's actions, which was the countermeasure calls.

[00:11:59] Speaker 01:
She didn't push the agency on the issue as whether or not

[00:12:02] Speaker 01:
those were actually confirmed.

[00:12:04] Speaker 01:
And the second thing that she didn't do is, I look through this record and you know whose testimony is barely referenced?

[00:12:10] Speaker 01:
Barnes.

[00:12:11] Speaker 01:
Barnes goes to the DIA, he's in charge of the whole polygraph program for the government.

[00:12:15] Speaker 01:
And his testimony is never referenced.

[00:12:18] Speaker 01:
It's never referenced as a comparator.

[00:12:20] Speaker 01:
It's never referenced that he supports her underlying claims.

[00:12:23] Speaker 01:
It's never referenced that he supported her claims that they were being pressured on countermeasures, that they were being pressured on legacy candidates, which the IG found.

[00:12:32] Speaker 01:
So that doesn't appear in her record, nor in her record is there the central issue.

[00:12:37] Speaker 01:
It's the fundamental issue that I see as a problem for the judges as I pressed in the examination and I'm almost out of time.

[00:12:45] Speaker 01:
But this I think is the most significant thing if you're going to look at something.

[00:12:50] Speaker 01:
Why is it that she called countermeasures?

[00:12:52] Speaker 01:
That's the remedial problem.

[00:12:56] Speaker 00:
The elephant in the room here is the car factor one.

[00:13:01] Speaker 00:
and the strong reason to remove her from being a polygraph exam.

[00:13:08] Speaker 00:
I mean, and I think the evidence is strong there in such a way that we can't overturn the finding on car factor one that there was strong evidence to take the actions that the agency took.

[00:13:20] Speaker 00:
I'm not sure what that strong evidence was because the conversation that she had with an outsider

[00:13:29] Speaker 00:
Are you surprised about what we're talking about here as to what the CAR factor one evidence was?

[00:13:34] Speaker 01:
I am when Mr. Barnes testified that he had similar conversations with Joe Collins, Dan Holcomb, Lamberth, Toomey herself, James Lee, Richard Alexander.

[00:13:44] Speaker 00:
Well, are you saying that the DEA had rules that's totally permissible like in the middle of an examination for a polygraph examiner to have these kinds of conversations accusing

[00:13:57] Speaker 00:
A person of lying to a person that's outside the DEA?

[00:14:02] Speaker 00:
I'm just asking you a question.

[00:14:04] Speaker 00:
What is the rule on that?

[00:14:05] Speaker 00:
Is it permissible to share that kind of information with someone outside the DEA?

[00:14:10] Speaker 01:
What I'm saying is that... What is the rule?

[00:14:12] Speaker 01:
There is no rule.

[00:14:13] Speaker 01:
So it's okay to do it?

[00:14:15] Speaker 01:
There is no rule one way or the other.

[00:14:16] Speaker 01:
Barnes testified that it was a common practice for him to talk to these supervisors, including the people that brought the action.

[00:14:22] Speaker 00:
To talk to people, yes, but to actually share this kind of confidential information?

[00:14:30] Speaker 00:
Charts, examinees' responses.

[00:14:32] Speaker 04:
Wait, you think it's okay?

[00:14:35] Speaker 04:
You think there is no rule that says that the DEA person administering a polygraph

[00:14:42] Speaker 04:
Is not permitted to reveal the confidential employee responses to people not even employed by you think like she can share in the midst of a polygraph the ongoing dialogue that she's having with this employee with non personnel.

[00:15:00] Speaker 01:
Well, I think that the evidence shows that he was in a position at DIA where he was responsible for imposing the NCCA standards on the agency.

[00:15:13] Speaker 04:
Is there not a rule that says DEA agents are not allowed to share the information they glean in a polygraph from a prospective employee with outside of the agency personnel?

[00:15:27] Speaker 01:
Well, if there is such a rule, which I did not see actually cited,

[00:15:30] Speaker 01:
Why didn't all these other people get punished as a comparator?

[00:15:35] Speaker 04:
And my clerk just pointed out on Blue Brief page 33, your client testified that the reason she didn't report it to OPR is because she thought it needed to be sent up the chain of command.

[00:15:44] Speaker 04:
She never says anything about what you claimed earlier about being told she was not allowed to report it.

[00:15:51] Speaker 01:
I think she testified to that fact, Your Honor, and I could pull it out of the record and I could certainly supplement it with a filing, but she did testify that, in fact,

[00:16:00] Speaker 01:
went to Kevin Gaddy and went back to Toomey and to McCaw and said it needs to go to OPR.

[00:16:05] Speaker 04:
You earlier tried to claim she was told she was not allowed.

[00:16:08] Speaker 01:
She was.

[00:16:09] Speaker 01:
She was advised that she could not report the matter up because it had gone to chief counsel.

[00:16:14] Speaker 01:
And Toomey said the chief counsel said you could get into trouble if you push it.

[00:16:17] Speaker 04:
There is no evidence for that in this record that you presented to us.

[00:16:21] Speaker 01:
All right.

[00:16:22] Speaker 01:
I will look for my rebuttal.

[00:16:24] Speaker 04:
Sure.

[00:16:24] Speaker 04:
Absolutely.

[00:16:25] Speaker 04:
All right.

[00:16:36] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:16:38] Speaker 02:
I think it's noteworthy here that Ms.

[00:16:40] Speaker 02:
Harris was transferred to a different DEA unit.

[00:16:44] Speaker 02:
She wasn't terminated, and all of this occurred after a persistent deficient performance, after she had taken a training course, and after several quality control reviews of her work demonstrated that she still was

[00:17:04] Speaker 02:
conducting her polygraph examinations improperly.

[00:17:09] Speaker 02:
She also admits that as the administrative judge... Do you think that it's too harsh though?

[00:17:17] Speaker 04:
to have taken these actions against her under the circumstances.

[00:17:20] Speaker 04:
I mean, she was presented with sort of unconscionable information, the kind of information that would make any normal human feel absolutely compelled that something had to be done, right?

[00:17:32] Speaker 04:
I mean, wouldn't you agree?

[00:17:33] Speaker 04:
I would agree with that.

[00:17:34] Speaker 00:
Yeah.

[00:17:34] Speaker 04:
I mean, there's just no, I mean, just beyond my capacity, if I heard somebody say that.

[00:17:41] Speaker 04:
And I mean, yeah, she probably made a mistake reaching out to Barnes and trying to talk to him about how frustrated she was about stuff.

[00:17:47] Speaker 04:
But under these circumstances, isn't it just maybe a little, isn't the action that was taken against her maybe a little too much given all of that?

[00:17:59] Speaker 02:
Well, she has a burden of proof here with respect to demonstrating that she made a protected disclosure under the Whistleblower Protection Act.

[00:18:08] Speaker 02:
And I think LaChance is particularly instructive in saying that even if she had consulted with other employees, that's just not sufficient for the objective belief standard in terms of proving that this should be a protected disclosure.

[00:18:22] Speaker 04:
I mean, I certainly feel her pain.

[00:18:23] Speaker 04:
I understand her frustration.

[00:18:24] Speaker 04:
She went to her boss, said, report it to one of these two people, and only one of these two.

[00:18:29] Speaker 04:
And the boss did that.

[00:18:30] Speaker 04:
I have to say, the CCO's response about do nothing would have shocked my conscience, right?

[00:18:36] Speaker 04:
I mean, I would have been like, what do you mean do nothing?

[00:18:38] Speaker 04:
How do we do nothing when somebody says that they're having these kinds of thoughts?

[00:18:42] Speaker 04:
How do we not do something to protect that child?

[00:18:44] Speaker 04:
You know, like I that the response that Tumi got from the CCO, which I believe, you know, I trust the AJ's assessments of credibility, but that response is just sort of patently absurd to me.

[00:18:57] Speaker 02:
Well, what occurred here is that

[00:18:59] Speaker 02:
When Ms.

[00:18:59] Speaker 02:
Harris took this information to her supervisor, Ms.

[00:19:03] Speaker 02:
Toomey, Ms.

[00:19:04] Speaker 02:
Toomey did do something.

[00:19:05] Speaker 04:
Oh yeah, I agree.

[00:19:06] Speaker 04:
Ms.

[00:19:06] Speaker 04:
Toomey did something.

[00:19:07] Speaker 04:
But what I'm bothered by is CCO's response to Ms.

[00:19:10] Speaker 04:
Toomey.

[00:19:11] Speaker 04:
Nope, you can't do anything about it.

[00:19:12] Speaker 04:
Don't do anything about it.

[00:19:13] Speaker 04:
Like, you got somebody saying they want to do something really bad to a three-year-old at home.

[00:19:21] Speaker 04:
How could the chief legal counsel shame on that person?

[00:19:25] Speaker 02:
It's a horrible thing to even think about.

[00:19:29] Speaker 02:
But the facts here are that this examinee said that he or she was having thoughts about doing something.

[00:19:37] Speaker 02:
And objectively speaking, that's not a crime.

[00:19:40] Speaker 02:
So there were steps that were taken.

[00:19:43] Speaker 02:
And at some point, it got to a point where they decided this could not be reported further.

[00:19:53] Speaker 02:
There is no evidence in the record that OPR then consulted or recommended or referred this matter to law enforcement.

[00:20:04] Speaker 02:
In fact... That was a misstatement of the record?

[00:20:07] Speaker 02:
I believe that's right, Your Honor.

[00:20:09] Speaker 04:
Even... Look, she's probably going to lose because of not being able to prove a protected disclosure, but the woman deserves a medal for the fact that she fought as hard as she thought she could

[00:20:21] Speaker 04:
you know, for this child.

[00:20:22] Speaker 04:
And maybe there is lots of proof in here that she wasn't doing the best job as a polygraph examiner and that therefore, you know, you've satisfied your burden of showing action would have been taken no matter what.

[00:20:33] Speaker 02:
But it makes me sad because, you know, she... I understand your honest concerns and I'm not trying to discount them.

[00:20:47] Speaker 02:
It's just that on this record and whether Ms.

[00:20:51] Speaker 02:
Harris was able to prove her burden is just lacking.

[00:20:55] Speaker 02:
And Ms.

[00:20:57] Speaker 02:
Harris could have reported it to OPR herself.

[00:21:01] Speaker 02:
There's also no evidence in the record that she was advised not to.

[00:21:05] Speaker 02:
She could have even reported it to law enforcement if she felt... I know.

[00:21:10] Speaker 04:
There's nothing in this record that was presented to us that says what he was claiming.

[00:21:14] Speaker 04:
I know that.

[00:21:15] Speaker 04:
Because as you can tell,

[00:21:17] Speaker 04:
paid a lot of attention to this record.

[00:21:20] Speaker 03:
Thank you.

[00:21:20] Speaker 03:
On CAR factor three, their argument is that the government conceded it was neutral and then the administrative judge said it actually favors the government.

[00:21:32] Speaker 03:
The page they cited for your admission supposedly of neutrality was 5109, which is not in our appendix.

[00:21:39] Speaker 03:
Is there, do you acknowledge that the government conceded car factor three is neutral?

[00:21:45] Speaker 03:
What's your position on factor three?

[00:21:48] Speaker 02:
Your Honor, the government did not concede that.

[00:21:52] Speaker 02:
There were examples that the administrative judge directly addressed at page, appendix page 48 to 49.

[00:22:01] Speaker 02:
Those examples included Tumi's testimony

[00:22:07] Speaker 02:
which is at appendix page 4708 through 09, and also at appendix page 4746, where they had sent another employee to refresher training.

[00:22:18] Speaker 02:
There was another employee who they had removed for performance.

[00:22:22] Speaker 03:
Is that correct?

[00:22:23] Speaker 03:
Right.

[00:22:23] Speaker 03:
I did see all that.

[00:22:24] Speaker 03:
But so if we had page 5109, it would not show a government concession on factor three.

[00:22:29] Speaker 03:
Is that right?

[00:22:30] Speaker 03:
I don't believe so, Your Honor.

[00:22:32] Speaker 03:
I did not.

[00:22:33] Speaker 02:
That was not our position.

[00:22:34] Speaker ?:
Okay.

[00:22:38] Speaker 04:
Okay, anything further, Ms.

[00:22:39] Speaker 02:
Moses?

[00:22:40] Speaker 02:
No, Your Honor, if the Court has no further questions, we ask that the Court affirm the Board's decision.

[00:22:44] Speaker 02:
Thank you.

[00:22:47] Speaker 01:
Just very briefly, Your Honor, I haven't found the subsequent report where my client was advised by OPR that they followed up with Virginia State Police.

[00:22:57] Speaker 01:
Here is the statement that my client made.

[00:23:01] Speaker 01:
Did you report

[00:23:02] Speaker 01:
this to any law enforcement or local child protective services.

[00:23:05] Speaker 01:
This is on cross-examination.

[00:23:30] Speaker 04:
Forty six hundred.

[00:23:31] Speaker 04:
Okay.

[00:23:31] Speaker 04:
So there's four pages here.

[00:23:33] Speaker 04:
Is there a particular one?

[00:23:34] Speaker 04:
Three fifty eight, three sixty, something like three sixty one.

[00:23:37] Speaker 04:
Three sixty one.

[00:23:37] Speaker 04:
Okay.

[00:23:39] Speaker 01:
No, I reported it to my chain of command and I told Mary that following week when, you know, Mary Mary sick, tears key, according to her email said no, and you will bring harm to the agency yourself and yourself.

[00:23:51] Speaker 01:
And then I reengaged with Vanessa.

[00:23:53] Speaker 01:
We have to contact all PR while they are trying to oppress a crime.

[00:23:57] Speaker 01:
So I then engaged with Mary.

[00:23:59] Speaker 01:
I think Wednesday I said, you have to call OPR.

[00:24:02] Speaker 01:
That occurred after, after she was told about Tiersky.

[00:24:06] Speaker 01:
My client clearly testified to that fact.

[00:24:08] Speaker 01:
She made it very clear that she was following up and pressing the issue.

[00:24:12] Speaker 01:
And then after she did that, OPR contacted to me and said, where is the DEA-6 on this that shows the conversation you should have reported us to us?

[00:24:22] Speaker 01:
All that occurred well before she was transferred.

[00:24:25] Speaker 01:
All that occurred well before the retaliation began.

[00:24:29] Speaker 01:
So the triggering event for this was her pressing the issue.

[00:24:33] Speaker 01:
And so it is in the record.

[00:24:35] Speaker 01:
I didn't make it up.

[00:24:36] Speaker 01:
I didn't misstate it.

[00:24:37] Speaker 01:
It is right here.

[00:24:37] Speaker 04:
That's what my client testified.

[00:24:39] Speaker 04:
I think you absolutely overstated it.

[00:24:40] Speaker 04:
I don't think that statement is consistent.

[00:24:41] Speaker 04:
But you can go back and listen to your oral argument.

[00:24:43] Speaker 04:
You overstated it.

[00:24:44] Speaker 04:
But go ahead.

[00:24:46] Speaker 01:
I believe it's very clear that she said that she pressed the issue.

[00:24:50] Speaker 01:
And I believe she also testified that after she had the conversation with Tiersky, she talked to Kevin Gaddy.

[00:24:56] Speaker 01:
I think that was on the next page.

[00:24:57] Speaker 01:
She goes into her discussions with Gaddy.

[00:24:59] Speaker 04:
The ALJ who heard all of this found Mr. Toomey credible or Ms.

[00:25:04] Speaker 04:
Toomey credible and didn't find that there was any evidence that Ms.

[00:25:09] Speaker 04:
Toomey would have

[00:25:12] Speaker 04:
you know, had a negative reaction to this being pressed.

[00:25:16] Speaker 01:
But that's why, and I'll just finish with this, that's why the transfer that occurs right after this conversation, right after it's reported.

[00:25:23] Speaker 01:
It was because of construction.

[00:25:24] Speaker 04:
The record shows.

[00:25:25] Speaker 01:
There was no construction.

[00:25:26] Speaker 01:
Dave Lambert, Mr. Barnes said there wasn't construction going on.

[00:25:30] Speaker 01:
My client testified it didn't affect anything.

[00:25:32] Speaker 01:
She testified additional people were going back to that station.

[00:25:35] Speaker 01:
She testified that it was inconsistent with what she was supposed to do and she couldn't do the testing there.

[00:25:40] Speaker 01:
testify that nobody had been sent to WETR in 12 years.

[00:25:42] Speaker 04:
There are fact findings throughout this that would have to be proven to be not supported by substantial evidence.

[00:25:49] Speaker 01:
Well, I agree, Your Honor, but if the judge got the idea of the protective disclosure wrong, it would get remanded to evaluate the evidence in light of that protected disclosure.

[00:26:00] Speaker 01:
That's our position.

[00:26:02] Speaker 01:
That's why we say there is other evidence to show that the judge did not take into account substantial evidence.

[00:26:08] Speaker 01:
She didn't ever prove the agency to show that the underlying conduct that got her not not refresher training, but negative remedial training.

[00:26:15] Speaker 01:
was based upon actual countermeasures that she was mis-calling rather than being supported.

[00:26:21] Speaker 01:
So that tends to show me that it was the countermeasure she was calling that led to her discord with the agency and that it was her pressing to me on this pedophile matter and pressing McCaw on this pedophile matter that got them to be angry with her.

[00:26:36] Speaker 01:
And within two weeks of that disclosure, they sent her to a distant location.

[00:26:40] Speaker 01:
And the Gulag treatment is a typical response to whistleblower activity.

[00:26:45] Speaker 01:
It's to send someone out and the comparators the agency cites they would the agency itself said there was a neutral one They had no comparators the judge added the comparators the agency never raised them

[00:26:56] Speaker 01:
And so I think the record does show that my client made a protected disclosure and the chain of events that follows was in reprisal.

[00:27:02] Speaker 01:
So I respectfully disagree with the idea that the judge got it right because the evidence shows that she did not.

[00:27:09] Speaker 01:
And we think that the agency has to show by clearing convincing evidence they would have done this anyhow.

[00:27:15] Speaker 01:
I think you have to find that she made a protected disclosure that has to be sent back and remanded to determine whether this opinion is consistent with that.

[00:27:23] Speaker 01:
Thank you, Ernest.

[00:27:24] Speaker 04:
Council the case is taken into submission.