[00:00:00] Speaker 04:
Our final case this morning is number 24, 1514, Tabakal versus Merritt's protection board.

[00:00:07] Speaker 04:
Mr. Zakai.

[00:00:09] Speaker 02:
Good morning, and may it please the court.

[00:00:12] Speaker 02:
My name is Howard Zakai on behalf of the petitioner, Sayid Tabakal.

[00:00:17] Speaker 02:
We ask this court to vacate the board's decision and remand for a jurisdictional hearing.

[00:00:24] Speaker 04:
I'm a little confused about one thing.

[00:00:27] Speaker 04:
Maybe you can help me with it.

[00:00:29] Speaker 04:
As I understand this involuntary resignation theory, the petitioner has to establish that it wasn't an option available to him to stand and fight to make the argument.

[00:00:50] Speaker 04:
Here, your client did raise issues before the MSPB, before he resigned in March 2015.

[00:01:01] Speaker 04:
But as I understand the jurisdiction of the EEOC, it does not extend to Whistleblower Protection Act claims, correct?

[00:01:13] Speaker 02:
What Mr. Tabaco presented.

[00:01:15] Speaker 04:
Is that correct?

[00:01:17] Speaker 02:
The Whistle Blowing Protection Act does not necessarily pertain to postal service employees.

[00:01:25] Speaker 02:
However, retaliation because of whistle blowing or EEO was presented.

[00:01:33] Speaker 04:
OK, but you're not answering my question.

[00:01:36] Speaker 04:
My understanding is the EEOC

[00:01:38] Speaker 04:
doesn't have jurisdiction over those whistleblower claims, right?

[00:01:44] Speaker 02:
Over the whistleblower claims, correct.

[00:01:46] Speaker 04:
Okay.

[00:01:46] Speaker 04:
So the claims that we have before us now, because of a waiver of the discrimination argument, are the whistleblower-related claims.

[00:01:58] Speaker 04:
So my question is, since they weren't

[00:02:01] Speaker 04:
presented to the Merit System Protection Board before the resignation, what's the evidence that he couldn't have done that and raised that issue instead of resigning?

[00:02:14] Speaker 02:
So the essence of an involuntary resignation claim are acts, improper conduct, which can be retaliation

[00:02:25] Speaker 04:
Sure, but part of your showing has to be that your client involuntarily resigned instead of standing and fighting, that standing and fighting wasn't an available option to them as a practical matter.

[00:02:41] Speaker 04:
And what I'm saying is your client filed

[00:02:45] Speaker 04:
several months before he resigned with the EEOC, raising these arguments about discrimination.

[00:02:53] Speaker 04:
But he never filed a whistleblower claim or an adverse action claim with the MSPB.

[00:03:00] Speaker 04:
What's the excuse for not doing that?

[00:03:03] Speaker 02:
Well, he had gone to the Office of General Counsel.

[00:03:07] Speaker 02:
Um, he had told the EEO office, he had told his managers that he was being disciplined as for whistleblower retaliation.

[00:03:16] Speaker 04:
Okay.

[00:03:16] Speaker 04:
But he had a remedy which he didn't pursue, right?

[00:03:20] Speaker 02:
At that time, he thought that the way to go.

[00:03:22] Speaker 04:
No, no, no.

[00:03:22] Speaker 04:
You just answered my question.

[00:03:24] Speaker 02:
He did not file with the MSPB at that point.

[00:03:27] Speaker 04:
And he had, and that was an available remedy to him, right?

[00:03:30] Speaker 02:
That could have been an available remedy.

[00:03:32] Speaker 04:
So, so under the stand and fight theory, why isn't

[00:03:37] Speaker 04:
he barred from making this involuntary resignation argument because he failed to pursue an available remedy without an excuse.

[00:03:48] Speaker 02:
I think, well, he might have believed that it was to first go to the EEOC.

[00:03:53] Speaker 02:
Afterwards, he then went to the MSPB.

[00:03:56] Speaker 00:
Is it, am I correct in understanding that it was from the time of leaving the employment until the time of raising the whistleblower claims for the board was like four or five years?

[00:04:09] Speaker 02:
He had continued before the EEOC to raise whistleblowing and whistleblowing retaliation as part of- Was it four or five years before he went to the MSPB?

[00:04:20] Speaker 02:
That's right.

[00:04:21] Speaker 02:
The MSPB was deemed an appeal of the EEOC administrative judge's decision.

[00:04:29] Speaker 02:
And that's where he continued to raise all these claims of involuntariness in addition to the retaliation.

[00:04:35] Speaker 02:
They didn't have to wait for the EEOC decision.

[00:04:39] Speaker 04:
He had an independent claim that he could have brought before the MSPB relating to whistleblown, correct?

[00:04:46] Speaker 02:
He could have.

[00:04:46] Speaker 02:
The essence here is that he was physically disabled.

[00:04:52] Speaker 02:
He was losing his job.

[00:04:53] Speaker 02:
They were telling him he no longer had a physician.

[00:04:56] Speaker 04:
But if he was able to file before the EEOC,

[00:04:59] Speaker 04:
Uh, in 2015, why couldn't he file for the MSPB?

[00:05:06] Speaker 02:
He had, um, why didn't he, he had filed the EEO in that fall.

[00:05:12] Speaker 02:
Okay.

[00:05:12] Speaker 02:
He was still working at the time.

[00:05:14] Speaker 02:
Um, and that remained pending by the time he was forced to resign.

[00:05:20] Speaker 02:
He's, he's already being told.

[00:05:23] Speaker 02:
that he has no position that he could perform with or without accommodation.

[00:05:28] Speaker 02:
He's physically active.

[00:05:29] Speaker 04:
That's the answer to my question.

[00:05:30] Speaker 04:
If he could file in March of 2015 before the EEOC raising the discrimination claims, why is it that he couldn't file before the MSPB raising the whistleblower claims?

[00:05:47] Speaker 02:
To answer your question, Your Honor, I don't know why.

[00:05:51] Speaker 02:
But the law is not that he has to exhaust every single tribunal, especially if the coercion and the lack of communication and, in fact, the deceiving communication about his options as an employee is leaving him no options as to what he can do about the fact that he's getting sicker and sicker every time they keep on disciplining him

[00:06:21] Speaker 02:
for his prior activity, whistleblowing and EEO activity.

[00:06:26] Speaker 02:
And he's getting sick.

[00:06:28] Speaker 02:
And at this point, he's being told, you can't even come back.

[00:06:32] Speaker 04:
But the theory of involuntary resignation is that it wasn't an option available to the employee to stand and fight, to raise the issues that led to the resignation in an appropriate form.

[00:06:45] Speaker 04:
And here, it seems to me, the record doesn't support the notion that he couldn't stand and fight.

[00:06:52] Speaker 04:
If he could have filed before the EEOC for the discrimination claims, surely he could have filed before the MSPB with the whistleblower.

[00:07:01] Speaker 02:
He could have, Your Honor.

[00:07:02] Speaker 02:
The law also recognizes, and mind you, this is several months later.

[00:07:06] Speaker 02:
So conditions have deteriorated.

[00:07:09] Speaker 02:
It gets to a point where, if exhaustion is going to be futile, he's being told he's losing his job.

[00:07:15] Speaker 02:
He has no more position to come back to.

[00:07:18] Speaker 02:
He's now no longer getting paid.

[00:07:20] Speaker 02:
He's physically incapacitated.

[00:07:23] Speaker 02:
They're telling him, you can't perform even if we don't grant you an accommodation.

[00:07:27] Speaker 02:
He has already exhausted other outlets, workers' compensation.

[00:07:32] Speaker 02:
He has an EEO pending.

[00:07:34] Speaker 02:
And now he's being told, you can't come back.

[00:07:36] Speaker 02:
And he's not well at all.

[00:07:39] Speaker 02:
Um, so at this point, when you put all that together, when he's asking for clarification, what can I do?

[00:07:45] Speaker 02:
You're telling me that I can't come back even if you don't give me an accommodation, which he wasn't asking for, but that's besides the point that he could not have an accommodation.

[00:07:54] Speaker 00:
I'm sorry.

[00:07:55] Speaker 00:
I understood him to be saying he couldn't come back because he couldn't have an accommodation.

[00:08:00] Speaker 00:
You're saying that's not the case.

[00:08:02] Speaker 02:
He didn't, he never asked for an accommodation.

[00:08:05] Speaker 02:
The agency construed it as an accommodation.

[00:08:08] Speaker 02:
We're not disputing that part.

[00:08:11] Speaker 02:
All they had to do was decide there's no accommodation to give you and leave it at that.

[00:08:15] Speaker 02:
What they did is go well beyond the scope of the matter and say, you can't perform even without an accommodation.

[00:08:23] Speaker 02:
And he's stuck sick.

[00:08:25] Speaker 02:
Not well.

[00:08:26] Speaker 02:
He's on leave.

[00:08:27] Speaker 02:
And he writes an appeal.

[00:08:29] Speaker 02:
and ask for clarification.

[00:08:30] Speaker 02:
You're telling me I can't perform with or without.

[00:08:33] Speaker 02:
What am I supposed to do?

[00:08:34] Speaker 02:
They don't respond.

[00:08:36] Speaker 02:
They mail out documentation with respect to his sick leave continuation.

[00:08:41] Speaker 02:
They miss mail it, even though they have his address.

[00:08:44] Speaker 02:
Then they put him on absent without leave, without pay, penalizing him because he never responded to something.

[00:08:52] Speaker 02:
They never sent him.

[00:08:53] Speaker 02:
And so now he's not being paid.

[00:08:56] Speaker 02:
He is bravely ill.

[00:08:58] Speaker 02:
I mean, not deathly, but he's not well.

[00:09:02] Speaker 02:
And he thinks they're ignoring him.

[00:09:05] Speaker 02:
And he also thinks that he has no position that he could return to.

[00:09:10] Speaker 04:
So at this point, the issue is whether he could have filed a claim, whether he could have stood and fought.

[00:09:19] Speaker 02:
He had already stood and fought on several different fronts.

[00:09:25] Speaker 02:
And it wasn't just about Wissewong, per se.

[00:09:28] Speaker 02:
It was that he was being harassed and disciplined.

[00:09:33] Speaker 02:
And all elements, whether it's Wissewong retaliation, EEO retaliation, all those facts come into play as to why and how someone is getting sick.

[00:09:43] Speaker 02:
And he was physically unable to, at that point in time, at the time that he was forced to resign, which is in July, after months of medical leave, after months of not getting answers, and the only answers he's getting is actually deceptive or misleading information upon which he's reasonably relying.

[00:10:02] Speaker 02:
So at that point in time, he already has an EEO pending.

[00:10:06] Speaker 02:
He tried with workers' compensation.

[00:10:08] Speaker 02:
He went to OSHA.

[00:10:10] Speaker 02:
And nothing is getting done.

[00:10:13] Speaker 02:
No one is investigating anything.

[00:10:16] Speaker 02:
And he's now sick and worse off than he was when he originally filed the EEO back in the fall.

[00:10:23] Speaker 02:
So at that point, when you look at all the circumstances, he had stood and fought to the extent that he could.

[00:10:32] Speaker 02:
He did go to many different places.

[00:10:34] Speaker 02:
Things got worse.

[00:10:35] Speaker 02:
They stopped answering his requests.

[00:10:38] Speaker 02:
And so at that point, he was left with no choice.

[00:10:42] Speaker 02:
He actually thinks he has no position left.

[00:10:45] Speaker 02:
And at that point, he resigns.

[00:10:47] Speaker 02:
He even went to seek unemployment insurance.

[00:10:52] Speaker 02:
And the state tribunal determined, in fact, yes, you got sick because of the conditions and the supervisors causing you to get sick.

[00:11:02] Speaker 02:
And you don't have a position to which you can return.

[00:11:05] Speaker 02:
And that's where we were left.

[00:11:08] Speaker 02:
Your honors.

[00:11:09] Speaker 02:
Unless your honors have additional questions, I'll reserve the room during my time for rebuttal.

[00:11:16] Speaker 04:
Thank you.

[00:11:31] Speaker 01:
Good morning, your honors.

[00:11:31] Speaker 01:
May it please the court?

[00:11:33] Speaker 01:
I'd like to first address the scope of this appeal.

[00:11:37] Speaker 01:
You heard the petitioner argue that this case is not just about whistleblower reprisal incidents.

[00:11:44] Speaker 01:
And Respondent disagrees.

[00:11:46] Speaker 01:
The scope of the appeal before this court is exceedingly narrow in order to proceed before the court.

[00:11:51] Speaker 01:
Mr. Tavical waived his discrimination claims, which sort of formed the bulk of his case before the MSPB.

[00:11:57] Speaker 01:
His theory is that there were intolerable working conditions before the MSPB based both on

[00:12:04] Speaker 01:
EEO discrimination issues and whistleblower reprisal that were so intolerable that it caused him to become ill, unable to work, and ultimately to resign.

[00:12:16] Speaker 01:
But given the waiver of the discrimination claims, in order to proceed before this case, what we are left with is three incidents of whistleblower reprisal.

[00:12:25] Speaker 01:
And these include a letter of warning,

[00:12:29] Speaker 01:
Placement on a performance improvement plan and a letter of consent.

[00:12:32] Speaker 00:
What is your view on the delay in time between the fact that while Mr. Kavakal was employed, he filed an EEOC case, and he could have gone to the MSPB, but he did not go to the MSPB.

[00:12:48] Speaker 00:
As a matter of law, does that make it so he could not have jurisdiction before the MSPB now?

[00:12:57] Speaker 00:
In other words, how does that weigh against the voluntariness of his resignation, support that his resignation was voluntary?

[00:13:05] Speaker 01:
I think, Your Honor, it's two separate issues in terms of jurisdictional, like the timeliness of his board appeal.

[00:13:12] Speaker 01:
Is that what you're asking about?

[00:13:13] Speaker 04:
Or the- No, I think what she's asking is the stand and fight theory.

[00:13:18] Speaker 04:
Did he need to apply for relief to the MSPB?

[00:13:23] Speaker 01:
No, Your Honor, he did not have to seek

[00:13:27] Speaker 01:
an appeal before the MSPB at that time.

[00:13:29] Speaker 01:
But the question is, were there options available to him?

[00:13:33] Speaker 04:
No, the question is whether his failure to seek relief from the MSPB at the time means that he can't assert an involuntary resignation claim because he needed to stand and fight and raise his issues at the MSPB at the time.

[00:13:50] Speaker 01:
I don't think that stand and fight necessarily means he had to file an MSPB appeal.

[00:13:55] Speaker 01:
I think stand and fight means

[00:13:56] Speaker 01:
You must not resign your position.

[00:13:59] Speaker 01:
We want employees to stay on the job and appeal, which Mr. Tavakol did in this instance.

[00:14:06] Speaker 01:
He filed an EEO.

[00:14:08] Speaker 04:
Yeah, but he didn't file.

[00:14:10] Speaker 04:
We're now confined to whistleblower protection.

[00:14:13] Speaker 04:
He didn't file whistleblower protection.

[00:14:18] Speaker 01:
That's correct.

[00:14:20] Speaker 01:
But the test isn't whether or not he filed it.

[00:14:22] Speaker 01:
The test is whether there were options available to him that he such it's a coercion test like options available to him that he didn't pursue that he could have pursued.

[00:14:31] Speaker 01:
That's correct.

[00:14:32] Speaker 04:
So he had an option here to pursue, which is to raise a whistleblower protection claim, which he didn't pursue.

[00:14:39] Speaker 01:
Yes, that is an option that he could have pursued.

[00:14:42] Speaker 01:
And then, Your Honor, we agree with you that this was not an instance of

[00:14:47] Speaker 01:
a lack of meaningful choice.

[00:14:49] Speaker 01:
There were many options that he could have pursued.

[00:14:51] Speaker 03:
How does that relate to whether or not he's followed non-frivolous allegations?

[00:14:58] Speaker 01:
The test, Your Honor, is whether or not he raised non-frivolous allegations that his working conditions were so intolerable that a reasonable person would have felt compelled to resign.

[00:15:08] Speaker 03:
Correct.

[00:15:08] Speaker 03:
That's how I understand it also.

[00:15:10] Speaker 03:
But I don't understand how the failure to

[00:15:13] Speaker 03:
follow, for example, another filing option, why that minimizes the adverse conduct that he did allege.

[00:15:26] Speaker 01:
Well, Your Honor, there's multiple theories of a coercion.

[00:15:28] Speaker 03:
I mean, he doesn't have to prove his case, right, at the beginning of his filing.

[00:15:34] Speaker 01:
He had to reconfirm.

[00:15:35] Speaker 03:
He needs to have non-frivolous allegations.

[00:15:38] Speaker 01:
Correct, Your Honor.

[00:15:39] Speaker 01:
Non-frivolous allegations that his working conditions were so intolerable.

[00:15:42] Speaker 03:
And then he proves his case later on as to the other aspects of the non-whistleblower protection statute.

[00:15:49] Speaker 01:
I'm sorry, Your Honor?

[00:15:51] Speaker 03:
Then he has to prove later on.

[00:15:52] Speaker 03:
I mean, he needs to... The question is whether he was denied a jurisdictional hearing on the basis that he did not file non-frivolous allegations.

[00:16:04] Speaker 01:
Correct, Your Honor.

[00:16:05] Speaker 01:
And MSPB's position is that these three incidences of whistleblower reprisal do not amount to non-frivolous allegations that a reasonable person would have felt compelled to resign facing a letter of warning, a letter of concern, and a performance improvement plan.

[00:16:21] Speaker 01:
There are reasons you can challenge a PIP.

[00:16:23] Speaker 03:
And what the MSPB does or happens here is that you look at the totality of the circumstances.

[00:16:30] Speaker 03:
Yes, Your Honor.

[00:16:33] Speaker 03:
It seems to me that they did not look at the totality of the circumstances.

[00:16:38] Speaker 03:
They looked at some of the circumstances and discounted others.

[00:16:42] Speaker 01:
I think what the MSPB did, Your Honor, is they looked at the totality of the circumstances, recognizing that generally the circumstances preceding a resignation are most probative.

[00:16:55] Speaker 01:
But nonetheless, they did still consider the totality.

[00:16:58] Speaker 03:
But they're probative.

[00:16:59] Speaker 03:
They are part of the totality of the circumstances that are considered.

[00:17:04] Speaker 01:
Yes, Your Honor.

[00:17:05] Speaker 01:
And I believe the MSPB did consider, I think it's page 12 of the initial decision, the judge recognizes, considering all the circumstances of when he resigned, that these simply, even accepting his allegations as true, these simply did not rise to the level of a non-frivolous allegation.

[00:17:22] Speaker 00:
And again, would say that there was such a look at the amount of time

[00:17:28] Speaker 00:
where between the workplace conduct and then it was like four or five months later, they did emphasize that change in time, the amount of time and rely on that and maybe inconsistent with our decision in Trinkle, right?

[00:17:46] Speaker 01:
Correct, Your Honor.

[00:17:47] Speaker 01:
We addressed this in our brief, but yes,

[00:17:50] Speaker 01:
to the extent the administrative judge acknowledged that the most probative evidence was caught right before.

[00:17:58] Speaker 01:
And you consider that weighing of evidence.

[00:18:01] Speaker 01:
To the extent that's an error, ultimately, regardless of the, it's harmless.

[00:18:05] Speaker 01:
Because regardless of the timing, we are only, we aren't considering all of the incidences before the MSPB.

[00:18:12] Speaker 01:
We're considering three whistleblower claims, which regardless of the timing, simply don't rise to the level of a non-frivolous allegation.

[00:18:20] Speaker 01:
You know, we're looking at a letter of concern, a letter of warning that, Your Honor, was expunged prior to Mr. Cavical, long before he resigned, and his placement on a performance improvement plan.

[00:18:31] Speaker 00:
And as Your Honor recognizes- When is your best federal circuit case supporting the position that when we look at the totality of circumstances, we should ignore any allegations of discrimination because the EEOC claims no longer exist?

[00:18:46] Speaker 00:
I mean, in the sense of looking at the totality of circumstances in the workplace environment.

[00:18:52] Speaker 01:
Well, Your Honor, we have to.

[00:18:53] Speaker 01:
Mr. Tabakal.

[00:18:54] Speaker 00:
I asked for a case.

[00:18:57] Speaker 00:
What is your best case for saying that we should not be looking at any of the discrimination claims?

[00:19:02] Speaker 01:
Perry, Your Honor.

[00:19:03] Speaker 01:
The Supreme Court decision in Perry says that

[00:19:08] Speaker 01:
this would be a mixed case, to the extent you're considering you're alleging an appealable action.

[00:19:13] Speaker 01:
Mr. Tavahal alleged an appealable action.

[00:19:15] Speaker 00:
But the question is, you're saying that you can't even have consideration of the facts as part of your totality of circumstances case, not to raise a discrimination claim, but to raise a claim involving whether

[00:19:31] Speaker 00:
There was such a hostile workplace that he had no choice but to resign.

[00:19:37] Speaker 00:
There are different issues, different claims.

[00:19:40] Speaker 01:
Correct, Your Honor.

[00:19:41] Speaker 01:
I would say the Harris case dictated that if you waive discrimination claims, what you can pursue is a theory that these actions were taken based on they were wrongful or they were harassing, anything except for a theory of discrimination.

[00:20:00] Speaker 01:
before dictated by Perry is whether the opponent alleges that they were subjected to an appealable action.

[00:20:09] Speaker 01:
And that action was based on

[00:20:11] Speaker 01:
discrimination or EEO reprisal.

[00:20:14] Speaker 01:
And so that's the essence of Mr. Tabakal's claim here.

[00:20:17] Speaker 01:
And if you look at his 15C before this court, that's what he had to waive in order for this court to have jurisdiction over the case.

[00:20:24] Speaker 01:
He cannot pursue theories of discrimination.

[00:20:26] Speaker 04:
So what you're saying is he waived his primary evidence.

[00:20:28] Speaker 04:
Correct.

[00:20:30] Speaker 00:
It's not just the theory, but also the evidence.

[00:20:33] Speaker 01:
Correct.

[00:20:33] Speaker 01:
So if you look at Petitioner's Brief, he has all these facts.

[00:20:38] Speaker 01:
He articulates a lot of facts that are really

[00:20:41] Speaker 01:
relevant to waived claims, these discriminatory comments, these threats, something about a knife and a gun, and all of that, none of that, all of that is waived for two reasons.

[00:20:53] Speaker 01:
The first being he chose to do so in his opposition to our motion to transfer in order to remain in this court.

[00:21:00] Speaker 01:
And the second is that if you look at Petitioner's Brief at page 39, in his legal argument section, what he relies on are these three alleged incidences of whistleblower reprisal because

[00:21:11] Speaker 01:
presumably because he recognizes that's all the case boils down to if you discount all of the

[00:21:19] Speaker 01:
discrimination claims.

[00:21:20] Speaker 01:
And so what this court is left with is an exceedingly narrow version of the case that was before the MSPB.

[00:21:26] Speaker 03:
You use the term discrimination claim.

[00:21:30] Speaker 03:
Let me ask you this question.

[00:21:32] Speaker 03:
Is it not the case that facts that can be used to underlie or support an EEOC claim are also probative of perhaps in the whistleblower action?

[00:21:48] Speaker 01:
They could be, Your Honor.

[00:21:49] Speaker 01:
And in this case, I believe Mr. Tavagal alleged that these three, the PIP and the letter of warning and the letter of concern, were both the EO and was the blower.

[00:21:57] Speaker 03:
The fact that somebody alleges a hostile environment based on discriminatory conduct, racist conduct, let's say, within the workplace,

[00:22:08] Speaker 03:
Those facts are not discounted just because they can be used to support an EEOC claim.

[00:22:15] Speaker 03:
They can also be used with respect to a whistleblower claim.

[00:22:20] Speaker 01:
They could, Your Honor, but the question, this court has to satisfy itself of its jurisdiction.

[00:22:24] Speaker 01:
And to the extent Mr. Tavakos would be relying on theories of discrimination that his

[00:22:30] Speaker 01:
He was coerced to resign because the agency's actions were discriminatory.

[00:22:34] Speaker 01:
Those claims are waived.

[00:22:35] Speaker 01:
They are not before this court.

[00:22:36] Speaker 01:
To the extent the court believes those claims are before it, then the case needs to be transferred to district court, because then it would be a mixed case that relies on a theory of coerced involuntary resignation due to discrimination.

[00:22:47] Speaker 01:
So he is free, which he's walking a fine line, and he's free to raise any claims that he can characterize as

[00:22:56] Speaker 01:
not based on discrimination.

[00:22:58] Speaker 01:
And that's why we get this emphasis on page 39 of Petitioner's Brief of the three whistleblower claims.

[00:23:04] Speaker 03:
It sounds like you're making conclusions as to the probative weight of the facts of the case, whereas all he has to show is a non-frivolous allegation.

[00:23:17] Speaker 01:
That's correct.

[00:23:17] Speaker 01:
At this stage, it's a non-frivolous.

[00:23:18] Speaker 03:
And that's a low standard, isn't it?

[00:23:20] Speaker 01:
It's a low standard, but a non-frivolous allegation is one if proven

[00:23:26] Speaker 01:
he would prevail.

[00:23:28] Speaker 01:
And ultimately, the doctrine of coerced involuntariness is an exceedingly narrow doctrine.

[00:23:35] Speaker 01:
And it is a very high burden.

[00:23:37] Speaker 01:
Mr. Tavical had options to stand and fight it.

[00:23:39] Speaker 03:
But we're not dealing with the ultimate burden here.

[00:23:42] Speaker 03:
We're dealing just with whether sufficient allegations have been made.

[00:23:47] Speaker 01:
Correct.

[00:23:47] Speaker 04:
What you're saying is the allegations have to be limited to the whistleblower allegations.

[00:23:50] Speaker 01:
That's correct, Your Honor.

[00:23:51] Speaker 01:
That is our respondent's position.

[00:23:53] Speaker 01:
And assuming the MSPB's decision

[00:23:56] Speaker 01:
Considering the totality of the evidence as before the MSPB, Respondent's position is that the MSPB probably found those allegations were not, well, I guess those aren't properly before this court.

[00:24:06] Speaker 01:
So taking aside all of the discrimination claims that were left with the three whistleblower claims, and it simply cannot be the case that someone facing, that this is a non-frivolous allegation, that he had no other option and he felt compelled to resign based on these three, a letter of warning that was expunged, a letter of concern,

[00:24:25] Speaker 01:
you know, a letter of warning, a letter of concern are not that substantial, severe of an action.

[00:24:31] Speaker 01:
A performance improvement plan didn't lead to any performance-based removal, but to the extent it had, Mr. Tavagal would have had appeal rights to the MSPB.

[00:24:39] Speaker 01:
The agency would have had to have shown that, as part of its case, that it was justified in placing Mr. Tavagal on a PIP.

[00:24:46] Speaker 01:
And so it simply

[00:24:49] Speaker 01:
cannot be the case that these are non-frivolous allegations that a reasonable person would have felt compelled to resign.

[00:24:56] Speaker 01:
And then I also want to address his contention that he had no option to resign because he believed the agency was terminating his employment.

[00:25:09] Speaker 01:
Even if that were true, as Your Honor recognized, even Mr. Tabachoff had options.

[00:25:17] Speaker 01:
And the precedent dictates that even if the agency had proposed his removal, even that would not have rendered his resignation involuntary.

[00:25:32] Speaker 01:
And here, we don't even have a proposed removal.

[00:25:34] Speaker 01:
We have his belief that he was being removed based on

[00:25:38] Speaker 01:
this sentence in the reasonable accommodation letter, which as the MSTV found, there was no one at the agency told Mr. Tavakol that he had no job.

[00:25:51] Speaker 01:
And if you look at the timeline of events, you have this letter finding he couldn't work with or without an accommodation.

[00:25:57] Speaker 01:
But then that occurred in March.

[00:26:00] Speaker 01:
And then you have in May the agency sending Mr. Tavakol correspondence saying,

[00:26:06] Speaker 01:
we need you to either return to work or submit medical documentation justifying your continued leave.

[00:26:12] Speaker 01:
And then Mr. Tabakal resigns in July.

[00:26:14] Speaker 01:
And so if you look at the timeline, it's simply not the case that the agency was saying he had no job.

[00:26:20] Speaker 01:
In fact, it was actually telling him you need to return to work or submit additional medical evidence.

[00:26:26] Speaker 03:
Let me read something to you out of the initial decision of the MSPB.

[00:26:33] Speaker 03:
It says, when an appellant raises allegations of discrimination or reprisal in connection with an involuntariness claim, evidence of discrimination may be considered only in terms of the standard for voluntariness in a particular situation, not whether the evidence meets the proof

[00:26:55] Speaker 03:
of discrimination or reprisal.

[00:26:58] Speaker 03:
Thus, evidence of discrimination or reprisal goes to the ultimate question of coercion, where under all circumstances, working conditions were made so difficult by the agency.

[00:27:08] Speaker 03:
Do you agree with that last part of this statement?

[00:27:11] Speaker 01:
Correct, Your Honor.

[00:27:12] Speaker 01:
That is the test.

[00:27:13] Speaker 01:
But the difference is the MSPB has jurisdiction over mixed cases, and they can hear discrimination claims, whereas this court does not.

[00:27:22] Speaker 01:
If Mr. Tavakol wanted to pursue the theories that were based on discrimination, he was free to file in district court and have the plethora of claims considered in the totality.

[00:27:32] Speaker 01:
But Mr. Tavakol, represented by counsel, elected to waive the claims.

[00:27:36] Speaker 01:
And now we are left with a small subset of the case that was before the MSPB with the three whistleblower claims that I have outlined.

[00:27:44] Speaker 01:
And Respondent's position is that those three claims were considered by the MSPB.

[00:27:48] Speaker 01:
The case is much narrower.

[00:27:49] Speaker 01:
And those three incidents is simply

[00:27:52] Speaker 01:
are not non-frivolous allegations that his working conditions were so intolerable that a reasonable person, the test is objective, a reasonable person would have felt compelled to resign facing a letter of warning, a PIP, and a letter of concern.

[00:28:04] Speaker 01:
Again, the letter of warning had been expunged long before he resigned.

[00:28:09] Speaker 01:
The performance improvement plan, I don't believe was in the record, but didn't appear to lead to any adverse employment consequences.

[00:28:16] Speaker 01:
And so Respondent's position is that

[00:28:21] Speaker 01:
Given the narrow view of this case, the MSPB's decision finding the allegations concerning the three whistleblower claims were simply not nonetheless allegations.

[00:28:37] Speaker 04:
OK.

[00:28:37] Speaker 04:
I think we're out of time.

[00:28:38] Speaker 04:
Thank you.

[00:28:38] Speaker 01:
OK.

[00:28:39] Speaker 04:
Thank you, Your Honor.

[00:28:40] Speaker 04:
That's just the time.

[00:28:45] Speaker 02:
Your Honor, just a few brief points.

[00:28:48] Speaker 02:
The only thing that was weighed

[00:28:51] Speaker 02:
were the racist comments early in the scheme of events.

[00:28:57] Speaker 04:
Well, he waived any discrimination claims.

[00:29:00] Speaker 04:
And we have waived all discrimination.

[00:29:03] Speaker 04:
There was evidence of discrimination here, but he's waived those claims.

[00:29:07] Speaker 02:
That's correct.

[00:29:09] Speaker 02:
And in the panoply of events that go towards the question of coercion, that was just a small fraction.

[00:29:16] Speaker 02:
We are indeed relying heavily on threats of intimidation, including Mr. Hamill's remarks, and in addition, a repeated exercise of disciplinary actions taken against him in retaliation.

[00:29:35] Speaker 00:
Understand correctly that what it is that you waived was a claim that there was constructive termination, involuntary resignation as a result of discrimination by the USPS on the basis of race, religion, national origin, or disability?

[00:29:54] Speaker 00:
That's correct.

[00:29:56] Speaker 00:
OK.

[00:29:56] Speaker 00:
That makes it pretty hard, then, to rely on that evidence for

[00:30:05] Speaker 00:
the basis of why he voluntarily or involuntarily resigned.

[00:30:09] Speaker 02:
Well, Your Honor, respectfully, we're not relying on that piece of information because the rest of the information, the rest of the facts, are pretty significant.

[00:30:19] Speaker 02:
The repeated disciplinary actions taken from August, September going into that winter were pretty significant.

[00:30:28] Speaker 02:
Those are the ones

[00:30:29] Speaker 02:
that made him very ill.

[00:30:31] Speaker 02:
That's when he had this panic attack after the letter of warning.

[00:30:35] Speaker 02:
Now, there was an EEO settlement in October 2014 in which they were supposed to, in its words, abide by their obligations, agency's obligations, not to violate whistleblowing activity and not to retaliate.

[00:30:54] Speaker 02:
What did they do?

[00:30:54] Speaker 02:
And it was expunged.

[00:30:56] Speaker 02:
What happened next?

[00:30:58] Speaker 02:
They kept on disciplining him for whistleblowing activity over and over and over again.

[00:31:06] Speaker 02:
So in terms of standing and fighting, he had raised these claims at the mediation in October.

[00:31:13] Speaker 02:
He gets to a settlement.

[00:31:15] Speaker 02:
They withdraw the letter of warning, and it's as if

[00:31:19] Speaker 02:
you know, it's all being disregarded by this very same supervisors.

[00:31:22] Speaker 02:
They keep on going back to the same thing over and over and over again.

[00:31:27] Speaker 02:
So he did stand in fight with respect to, well, we're doing anything more.

[00:31:31] Speaker 02:
By the time he's very sick in the spring of 2015, he's very ill.

[00:31:37] Speaker 02:
He exhausted those remedies, and he's stuck.

[00:31:42] Speaker 02:
Your Honor, Judge Skoll, your question was about considering the five months

[00:31:48] Speaker 02:
It's our argument that actually the error was by the board is that they viewed that whatever happened in that winter of 2014 was attenuated by those five months.

[00:31:59] Speaker 02:
The problem with the board's decision is that it completely miscomprehends that those five months were medically caused.

[00:32:11] Speaker 02:
He got ill because of the harassment and coercive

[00:32:14] Speaker 02:
acts that were taking place in that fall.

[00:32:16] Speaker 02:
So you can't say that it's attenuated.

[00:32:19] Speaker 02:
It's part and parcel of the coercion.

[00:32:21] Speaker 02:
It's the essence of this claim.

[00:32:25] Speaker 02:
So it's not attenuation.

[00:32:26] Speaker 02:
He got sick.

[00:32:28] Speaker 02:
And in all the cases that are recognizing a prima facie case, non-frivolous allegations of coercion, all of them have one thing in common, as does this case.

[00:32:38] Speaker 02:
They all have allegations where the person gets sick, and it's substantiated by

[00:32:44] Speaker 02:
by physician's medical documentation that was submitted here.

[00:32:47] Speaker 02:
And we asked for him for the case to be remanded so he could prove the coercion.

[00:32:53] Speaker 02:
But certainly at the point of non-frivolous allegations, that is absolutely met here with the documentation.

[00:33:00] Speaker 02:
Thank you.

[00:33:00] Speaker 04:
Thank you, Your Honors.