[00:00:27] Speaker 02: Next case is AFGE Local 1923 versus Social Security Administration 2018-23-94, Mr. Gagliotto. [00:00:39] Speaker 05: Thank you, Your Honor. [00:00:40] Speaker 05: Good morning. [00:00:40] Speaker 05: If it please the Court. [00:00:42] Speaker 05: If I might draw the Court's attention very briefly to some essential facts. [00:00:48] Speaker 05: First of all, the allegation against Ms. [00:00:51] Speaker 05: Ragsdale, who's present this morning, was that on 15 separate occasions in order to obtain leave, she submitted altered medical documentation. [00:01:01] Speaker 05: The first [00:01:02] Speaker 05: thing that needs to be considered, that in 11 of those 15 instances, she was not required to have medical documentation. [00:01:11] Speaker 05: Not required to have medical documentation pursuant to the collective bargaining agreement. [00:01:17] Speaker 05: To make a very long story short, if you're absent three days or less, you don't need the documentation. [00:01:23] Speaker 05: Additionally, 14 out of those 15 times at the arbitration hearing. [00:01:29] Speaker 03: The charge wasn't that she failed to file a form that was required. [00:01:33] Speaker 05: I'm sorry? [00:01:33] Speaker 03: The charge wasn't, she wasn't being punished for failure to file a form that was required. [00:01:40] Speaker 05: Correct. [00:01:41] Speaker 03: She was charged for falsification? [00:01:44] Speaker 05: Yes. [00:01:45] Speaker 05: I prefer to use the word altering. [00:01:47] Speaker 03: Are you saying it's okay to falsify a document that isn't required? [00:01:51] Speaker 05: No, what I'm saying is that if you look at the context, the severity is much less than the agency purported it to be in as the arbitrator found. [00:01:59] Speaker 05: If you boil this down to the essence, [00:02:01] Speaker 05: What we presented at the arbitration hearing was comparative evidence of people whose offenses were more severe than hers who were not fired. [00:02:11] Speaker 05: She was fired. [00:02:13] Speaker 05: The most egregious comparison is an individual who was a three-time offender who had been suspended for seven days for the first violation, 15 days the second time, and then on the third offense was only suspended for 45 days. [00:02:30] Speaker 02: Well, the arbitrator found that cases cited by the union involved misconduct that was not nearly as weighty or as severe as the grievance misconduct. [00:02:42] Speaker 02: There was also a lack of candor involved here. [00:02:45] Speaker 05: There was lack of candor in the case I just mentioned, Your Honor. [00:02:48] Speaker 05: The arbitrator's finding is not supported by the facts. [00:02:51] Speaker 05: That's to me very clear. [00:02:54] Speaker 05: He did say that what the agency posed to contradict what we posed were cases where people actually were supposedly fired, although in the brief they conceded that one of those three was not. [00:03:07] Speaker 05: The human resources witness for the agency said the reason we fired those people and didn't fire the people that we alleged were the appropriate comparators was because those people didn't enjoy a financial gain. [00:03:25] Speaker 03: They didn't gain a benefit. [00:03:26] Speaker 05: Correct. [00:03:27] Speaker 05: And our contention has been, and I think it's absolutely supported by the evidence, overwhelmingly so, that Ms. [00:03:34] Speaker 05: Ragsdale enjoyed no financial benefit. [00:03:37] Speaker 05: She was entitled to the leave. [00:03:39] Speaker 03: Is the benefit only financial? [00:03:42] Speaker 05: Yes, if I understood the testimony correctly of the HR witness. [00:03:49] Speaker 03: Why don't you show me the plaintiff record? [00:03:51] Speaker 05: Well, it's page 19 of the agency's brief. [00:03:54] Speaker 05: I don't have the appendix reference. [00:03:56] Speaker 03: Well, don't you have to show me the testimony you're talking about? [00:04:00] Speaker 03: Well, yes, and I... So the explanation was basically from the agency was we terminated the people where as a result of their false statements they gained, they got some benefit. [00:04:12] Speaker 05: Yes, and one of them obtained a work at home benefit and another one obtained what they termed voluntary leave transfer benefit. [00:04:20] Speaker 03: Okay, work at home benefit means that you can work at home, right? [00:04:23] Speaker 05: Correct, telework. [00:04:24] Speaker 03: Okay, so that's a benefit that's non-monetary. [00:04:30] Speaker 05: Well, I guess I'd have to concede that it's non-monetary, although there's an ancillary monetary benefit in the saving to the employee who can work from home. [00:04:42] Speaker 03: So someone who is able to stay at home without any penalty doesn't get knocked with AWOL, right? [00:04:52] Speaker 05: It depends whether they're actually working. [00:04:54] Speaker 03: This record is shot through with people who, in addition to making false statements, were AWOL. [00:04:58] Speaker 03: So AWOL's serious penalty. [00:05:00] Speaker 05: A wall is actually not disciplinary, Your Honor. [00:05:04] Speaker 05: That's in the regulations from the agency. [00:05:08] Speaker 05: No, there can be, but it has to be found that the absence without leave results in some other problem, in a failure to perform or something of that sort. [00:05:17] Speaker 05: But AWOL itself is universally recognized as not in and of itself a disciplinary matter. [00:05:23] Speaker 05: I think that the key here is that the burden is on the agency to show that if an employee is treated differently, [00:05:32] Speaker 05: than somebody who we allege has been treated more favorably for a same or more egregious offense. [00:05:38] Speaker 05: It's the agency's burden to establish why there's a difference. [00:05:42] Speaker 05: And the evidence of that is extremely weak. [00:05:44] Speaker 05: It is a single statement by the HR witness that these other folks enjoyed a financial benefit. [00:05:53] Speaker 05: I repeat myself when I say, Ms. [00:05:56] Speaker 03: Ragsdale enjoyed no financial benefit. [00:06:13] Speaker 05: As to our competitors or to their competitors, Your Honor, I'm not sure I understood the question. [00:06:19] Speaker 05: Because we did with our competitors, the comparators, we did. [00:06:23] Speaker 03: Well, we have in the record three examples in the appendix of the three main people that were supposed that the A.J. [00:06:31] Speaker 03: said, pardon me, the arbitrary said were removed, right? [00:06:35] Speaker 05: There were three, but in their brief they concede one of them was not removed. [00:06:37] Speaker 03: Well, the three, actually the two were not removed. [00:06:41] Speaker 03: Two, yes. [00:06:41] Speaker 03: One was allowed to quit. [00:06:43] Speaker 05: I think there was a different... One was allowed to quit. [00:06:46] Speaker 03: Another one was given a last-date settlement. [00:06:49] Speaker 03: Those are the three papers. [00:06:51] Speaker 05: But in order to meet their burden, I think they have to do more than the say. [00:06:54] Speaker 03: My point is that we have in the record the actual documents with regard to F7, F4, and F1. [00:07:03] Speaker 03: Those are the agency comparatives. [00:07:06] Speaker 03: It's the record. [00:07:07] Speaker 03: You can see exactly what the nature of the charges were. [00:07:09] Speaker 03: The two that you're relying on, we don't have that. [00:07:14] Speaker 03: The two in your brief, which were, I can't remember which F's they were, we don't have those documents. [00:07:22] Speaker 03: You didn't put them in the record. [00:07:23] Speaker 05: I think they're referred to, well, my error, if that, and I don't doubt that the court has properly determined that, but that was certainly not my intent. [00:07:32] Speaker 05: If you look at the deposition, excuse me, the arbitration transcript, those comparators are discussed there. [00:07:38] Speaker 03: The agency hasn't... Not discussed in any detail at all. [00:07:41] Speaker 05: But the agency hasn't challenged what we've said about those comparators. [00:07:45] Speaker 04: So what's the rule in terms of the Douglas Factors? [00:07:49] Speaker 04: Suppose the agencies, it seems to me, can't be consistent across the board in the way they treat people. [00:07:56] Speaker 04: It's just expecting too much. [00:07:58] Speaker 04: What is the rule? [00:07:59] Speaker 04: When does it become improper for the agency to treat similarly situated people differently? [00:08:09] Speaker 04: It can't be. [00:08:10] Speaker 04: that any difference is sufficient. [00:08:14] Speaker 05: When they can't meet the burden of showing that there is a reason for imposing a more severe penalty on someone whose offense is... So if there's one person who's in the same position, who's been treated differently, that's enough, even though there are several others who are treated the same way? [00:08:34] Speaker 05: I don't concede that anybody was treated the same way. [00:08:37] Speaker 04: Let's assume that we have six people who were in the same circumstances, that the agency treated five of them the same way, but treated one better than the employee who's on appeal. [00:08:54] Speaker 05: I don't know if there's a bright line. [00:08:58] Speaker 05: I think that you have to [00:09:02] Speaker 05: look at it from the perspective of why is the agency treating somebody who was entitled to take leave 11 of the 15 times? [00:09:11] Speaker 04: I mean agencies can't always be consistent, right? [00:09:14] Speaker 04: There are going to be situations that can't always be consistent. [00:09:19] Speaker 04: They may make mistakes, they may treat one person differently, but [00:09:25] Speaker 04: Don't we have to look to see whether it's a pattern of treating other people differently than the petitioner in this case? [00:09:33] Speaker 05: I'm not aware of any case law that says there has to be a pattern. [00:09:36] Speaker 04: What does the case law say? [00:09:38] Speaker 05: What's the governing case? [00:09:42] Speaker 05: What's the governing case? [00:09:44] Speaker 05: On the burden? [00:09:46] Speaker 04: Yeah. [00:09:47] Speaker 05: I'm sorry. [00:09:51] Speaker 05: I'm sure I put it in the brief, but I can't recall it off the top of my head. [00:10:03] Speaker 02: Well, maybe you could come back with it on rebuttal. [00:10:06] Speaker 02: If you don't have it, you can come back with it on rebuttal. [00:10:09] Speaker 05: I do have it. [00:10:10] Speaker 05: It's Lewis v. Department of Veterans Affairs signing Woody v. General Services Administration. [00:10:15] Speaker 05: And I'm not sure I'm pronouncing this correctly. [00:10:18] Speaker 05: Well, Becky v. Department of Homeland Security. [00:10:21] Speaker 05: Those are all cases. [00:10:23] Speaker 05: Two of those cases are decided as recently as 2010. [00:10:27] Speaker 05: And they're all MSPB cases. [00:10:31] Speaker 03: What do they say? [00:10:32] Speaker 05: They say that it's the agency's burden to show why they're treating somebody more harshly than a comparator. [00:10:39] Speaker 03: The government said here that in the first place, they thought your case was more egregious. [00:10:48] Speaker 03: Right? [00:10:49] Speaker 03: The arbitrator said that. [00:10:51] Speaker 05: He did say that, and he's absolutely wrong. [00:10:54] Speaker 05: I mean, look at the first comparator we talked about. [00:10:57] Speaker 05: The first comparator we talked about was a three-time offender. [00:11:03] Speaker 03: Which one is it? [00:11:05] Speaker 03: Where in the brief? [00:11:07] Speaker 03: Show me in the appendix. [00:11:09] Speaker 05: The appendix is page 56. [00:11:12] Speaker 03: There's no details about that. [00:11:19] Speaker 05: Well, it refers to the agents to various exhibits. [00:11:22] Speaker 05: We had stipulated a series of exhibits. [00:11:27] Speaker 03: F1 through 8 or 9, right? [00:11:29] Speaker 05: That's correct. [00:11:31] Speaker 03: Which F was this you're talking about? [00:11:32] Speaker 05: This looks like, let me make sure I'm reading the correct one. [00:11:40] Speaker 05: It appears to be F7. [00:11:41] Speaker 03: F7. [00:11:45] Speaker 03: OK. [00:11:45] Speaker 05: I think I got that right. [00:11:47] Speaker 03: F7? [00:11:48] Speaker 05: Yeah. [00:11:49] Speaker 03: F7 had four falsifications, was charged with lack of candor, had a seven-day suspension, a 15-day suspension, was proposed for removal, and then resigned the day before she was fired. [00:12:05] Speaker 05: No. [00:12:05] Speaker 05: That person got a 45-day suspension and given a last chance agreement. [00:12:10] Speaker 05: There's later testimony that that person then later violated the last chance. [00:12:14] Speaker 05: But the point of comparison that's that's F1 That person I will stand corrected That was a yes, I say it is yes, it's F1. [00:12:31] Speaker 05: It's F1. [00:12:32] Speaker 03: It's F1. [00:12:32] Speaker 05: Yes. [00:12:33] Speaker 05: I'm sorry I said I was wrong when I said you've mixed them up. [00:12:35] Speaker 03: I did sir I apologize the three that were actually removal or F7 F4 and F1 [00:12:44] Speaker 03: And the judge thought all three had been removed. [00:12:47] Speaker 03: Pardon me, the arbitrator was wrong. [00:12:51] Speaker 03: One quit before she got thrown out, before she was removed. [00:12:54] Speaker 03: And the other one got a last chance settlement agreement. [00:12:57] Speaker 05: If you get a last chance agreement, then you're not fired. [00:13:00] Speaker 05: So there are only two that they can point to. [00:13:02] Speaker 03: Right. [00:13:03] Speaker 03: The one that got the last chance agreement was not charged with lack of candor. [00:13:08] Speaker 03: So that is not a comparative. [00:13:12] Speaker 05: I think the court is asking for a bright line. [00:13:15] Speaker 03: You understand that. [00:13:16] Speaker 05: I understand what your point is. [00:13:17] Speaker 05: But I think the court's looking for a bright line distinction that doesn't exist and can't exist. [00:13:23] Speaker 05: I think that this is implied in your question, Judge Dyke, that you have to look at the totality of circumstances. [00:13:30] Speaker 05: And I think the board was wise when it said, rather than have an endless debate, try to find this non-existent bright line. [00:13:38] Speaker 05: We'll put the burden on the agency. [00:13:41] Speaker 05: to show why somebody is treated more severely. [00:13:45] Speaker 05: I'm repeating myself for the third time. [00:13:46] Speaker 05: The HR person says it's because these people got financial gain. [00:13:50] Speaker 03: Well, if one was about to- Can you show me in the record where they said financial gain? [00:13:55] Speaker 05: I don't have the appendix reference. [00:13:58] Speaker 05: I apologize. [00:13:58] Speaker 05: It's page 19 of the agency brief, of the government's brief. [00:14:02] Speaker 05: It's not in there. [00:14:03] Speaker 03: Where is the agency group? [00:14:06] Speaker 05: It's in the arbitration transcript where the HR person is testifying to that. [00:14:11] Speaker 03: I read it. [00:14:12] Speaker 03: All they said was you get a benefit, not a financial benefit. [00:14:19] Speaker 05: The point is, Ms. [00:14:20] Speaker 05: Ragsdale got no benefit. [00:14:21] Speaker 03: Of course she got a benefit. [00:14:23] Speaker 03: She was able to stay home. [00:14:25] Speaker 03: without being charged with able. [00:14:27] Speaker 05: No she was entitled. [00:14:28] Speaker 05: First of all on 11 occasions she didn't have to do anything and on 14 occasions at the arbitration hearing she said here's my legitimate proof which was never challenged and the one time she didn't have to do anything. [00:14:41] Speaker 03: She wasn't mean she could take the time off because of what. [00:14:46] Speaker 05: under the collective bargaining agreement and also the personnel policies at social security administration. [00:14:51] Speaker 05: If you're absent three days or less, unless you're on leave restriction, which she was not, I addressed that in the brief. [00:14:57] Speaker 05: You do not have to do anything other than call in and say, I'm sick. [00:15:02] Speaker 05: I won't be in today. [00:15:03] Speaker 05: There are certain details about that procedure. [00:15:06] Speaker 04: There's never been a legend. [00:15:07] Speaker 04: I thought there was also a question of her drawing leave [00:15:12] Speaker 04: later, period. [00:15:14] Speaker 04: And this misrepresentation had some relationship to that. [00:15:21] Speaker 05: Again, she, under the collective bargaining agreement, as long as she had legitimate illness, she could draw that down. [00:15:28] Speaker 05: And further, she has to pay it back. [00:15:31] Speaker 05: There's, again, various requirements and time limits on paying it back. [00:15:35] Speaker 05: And she complied with all of that. [00:15:37] Speaker 05: I don't, I know my time is almost up. [00:15:40] Speaker 03: I just want to... Now, I couldn't find in the record that was given us testimony because the agency got up and said, well, here's the reason why, or at least comparators, here are the reasons why the ones we got rid of, we removed. [00:15:55] Speaker 03: The others we didn't remove because they didn't get a gain. [00:15:58] Speaker 03: It would seem to me, once they make that allegation, the burden shifts to you to prove that your client didn't get any gain. [00:16:05] Speaker 05: And I think that we did. [00:16:07] Speaker 03: I can't see it. [00:16:08] Speaker 03: I didn't see any testimony in the record, specific testimony to the fact that she wasn't required to get these things. [00:16:17] Speaker 03: I see that in your brief. [00:16:18] Speaker 03: And then I didn't see in the record in front of us [00:16:23] Speaker 03: that she didn't get any gains. [00:16:24] Speaker 05: It hasn't been challenged by the government and it's in the collective bargaining agreement is what I can say at a minimum. [00:16:31] Speaker 03: But don't you have to put all that in the record once the government makes a prima facie argument as to why they have distinguished the comparators, put them into two groups, which sounds like a legitimate basis for putting them into two groups. [00:16:47] Speaker 03: We take people who didn't get them, we treat them as part of it. [00:16:50] Speaker 05: I'd ask the court to look at one other thing. [00:16:52] Speaker 05: The three comparators that we refer to, to the extent that anybody got a gain, financial or otherwise, so did the three comparators that we talked about. [00:17:00] Speaker 05: So that relies the government's rationale. [00:17:03] Speaker 02: Counsel, as you've noticed, the time has expired. [00:17:05] Speaker 02: We'll give you two minutes for a bottle. [00:17:08] Speaker 02: Let's hear from the government. [00:17:10] Speaker 05: Thank you. [00:17:26] Speaker 00: Good morning, Your Honor. [00:17:27] Speaker 00: May it please the court? [00:17:29] Speaker 00: Your Honor, this case presents two questions for the court's consideration. [00:17:33] Speaker 00: First, whether substantial evidence supports the arbitrator's decision that Ms. [00:17:37] Speaker 00: Ragsdale engaged in lack of candor. [00:17:39] Speaker 00: And second, whether the penalty of removal from federal service was reasonable. [00:17:43] Speaker 00: Both questions should be answered in the affirmative. [00:17:45] Speaker 00: To go directly to the discussion that you were just having with my opponent, if I direct the court's attention to Appendix 290, which is the collective bargaining agreement, and is the clause that determines that you need a doctor's note for advanced sick leave, [00:17:59] Speaker 00: So Ms. [00:18:00] Speaker 00: Ragsdale did not have sick leave. [00:18:02] Speaker 00: And so she was taking advanced sick leave. [00:18:03] Speaker 00: And in the case where you're seeking advanced sick leave, you do need a medical certificate. [00:18:08] Speaker 00: And that's on page 290 of the appendix. [00:18:09] Speaker 03: What is advanced sick leave? [00:18:11] Speaker 00: Advanced sick leave is when you do not have sick leave and the agency grants it to you anyway, knowing that you'll come back and pay it back when you return. [00:18:19] Speaker 00: And so one of the things that's required is a medical certificate that substantiates a serious illness or injury exists, as well as [00:18:26] Speaker 00: some indication that you will be able to return so that they know you'll pay them. [00:18:30] Speaker 03: Were all of her requests covered for advanced sick leave? [00:18:34] Speaker 00: There were 290 hours of advanced sick leave that Ms. [00:18:37] Speaker 00: Ragsdale received. [00:18:39] Speaker 00: So I'm not 100% sure that all of them, but at least 240, I'm sorry, 240 of the hours that she received were advanced sick leave hours, which would have required medical documentation. [00:18:50] Speaker 03: So how much of the additional leave she took wasn't for advanced leave? [00:18:55] Speaker 00: There was 111 hours that she took that were leave without pay. [00:19:00] Speaker 00: And so when we talk about the benefit she received, the testimony we were just talking about is on Appendix 54. [00:19:08] Speaker 00: And that testimony is that the comparators did not receive a benefit. [00:19:12] Speaker 00: It doesn't reference a financial benefit. [00:19:14] Speaker 00: It means a benefit as in the advance sick leave was considered a benefit for Ms. [00:19:18] Speaker 00: Ragsdale to which she was not entitled, as well as the leave without pay. [00:19:22] Speaker 00: So 111 hours of leave without pay and 240 hours of advance sick leave. [00:19:28] Speaker 00: That is what the agency considered the benefit to which Ms. [00:19:31] Speaker 00: Ragdale was not entitled. [00:19:33] Speaker 04: What do you understand the standard to be under the MSPB cases where you have this comparator issue? [00:19:42] Speaker 04: I mean, it strikes me, as I said earlier, [00:19:46] Speaker 04: The agencies can't be perfect about this. [00:19:49] Speaker 04: They can't treat everybody exactly the same. [00:19:54] Speaker 04: It's too complicated. [00:19:55] Speaker 04: What is the test? [00:19:56] Speaker 04: I mean, is it a pattern of treating other people differently? [00:20:00] Speaker 04: What do the cases say about it? [00:20:02] Speaker 00: I agree with you, Your Honor. [00:20:03] Speaker 00: That is difficult. [00:20:04] Speaker 00: The cases don't have a bright line rule. [00:20:06] Speaker 00: It is a double factor. [00:20:08] Speaker 04: Maybe they don't have a bright line rule, but do they have a test? [00:20:12] Speaker 00: There is not a task that I'm aware of. [00:20:13] Speaker 00: The language from the Douglas Factors is consistency with others similarly situated. [00:20:19] Speaker 00: And so the agencies have taken great time, and MSPB has taken the effort of looking at constables as we did here, looking at people who are similarly situated, and trying to make sure that the penalty imposed is consistent. [00:20:31] Speaker 04: Well, suppose it isn't. [00:20:33] Speaker 04: Suppose there are instances in which there is inconsistency. [00:20:36] Speaker 04: What happens then? [00:20:38] Speaker 00: Well, the Douglas factors are a balancing test. [00:20:40] Speaker 00: So no one factor weighs heavier than the others. [00:20:43] Speaker 00: And so what the agencies are able to do is look at all of the various Douglas factors and weigh them. [00:20:47] Speaker 00: And so the question becomes, [00:20:49] Speaker 00: If there is inconsistency, are there other mitigating factors that you can look at or other Douglas factors that weigh in favor of a penalty or not? [00:20:56] Speaker 00: And so in this case, in looking at all of the Douglas factors, the agency believed it weighed in favor of removal from its rights there. [00:21:10] Speaker 00: With respect to the penalty, Your Honor, the three Douglas factors that come up. [00:21:15] Speaker 03: It doesn't matter here. [00:21:16] Speaker 03: arbitrator got it wrong when he said that the three main comparator cases, all three were removed when only one was removed? [00:21:27] Speaker 00: Yeah, I don't think it makes a big deal. [00:21:29] Speaker 00: I think that the arbitrator still did a proper weighing. [00:21:33] Speaker 03: How do we know that this arbitrator actually rolled up his sleeves and looked in detail at the specifics of each of the comparators? [00:21:45] Speaker 03: We have in the record the actual documents for F7, F4, and F1. [00:21:52] Speaker 03: We don't have the documents for the two cases that your adversary cites in his brief. [00:21:59] Speaker 03: You respond to one of them by saying, in one of those, the person didn't get a benefit. [00:22:05] Speaker 03: You don't have a response to the other of his two that he puts in his blue brief, but with no record support. [00:22:11] Speaker 00: I will say, Your Honor, I also noticed that those were not here. [00:22:14] Speaker 00: This case was unique in that the arbitrator, who normally would submit a certified list to the court and documents were to use, completely destroyed everything. [00:22:23] Speaker 00: Council and I did have to go through and rebuild the record, and I am not personally familiar with the two, the details, the specific details of the missing sort of comparables, other than the testimony that we have in the record from the agency regarding those comparables. [00:22:39] Speaker 04: Does the Arbitrator understand that he shouldn't be destroying the records? [00:22:45] Speaker 00: I hope he does. [00:22:47] Speaker 00: Particularly when this case was appealed and everyone was in touch with him. [00:22:50] Speaker 03: Federal Rules of Health Procedure 17 expressly say that the agency has to keep the record. [00:22:55] Speaker 03: And in these cases where it comes up to the arbitrator, our practice note says agency means arbitrator. [00:23:02] Speaker 03: And so there was a violation of our FRAP 17 in this case. [00:23:07] Speaker 00: Well, the agency did keep the record and submitted the record. [00:23:10] Speaker 00: It did make it to the appendix. [00:23:12] Speaker 03: The agency submitted the docket sheet. [00:23:15] Speaker 03: Right. [00:23:16] Speaker 03: Which is all is required under FRAP 17. [00:23:20] Speaker 03: But the agency is required to keep the entire record, meaning the transcript, exhibits, and all that sort of thing. [00:23:25] Speaker 03: That's what got destroyed here. [00:23:27] Speaker 00: No, the arbitrator destroyed it. [00:23:29] Speaker 00: The agency does have those records. [00:23:31] Speaker 00: What I'm saying is that in building the appendix, Council and I worked together to build the appendix, and those comparables did not make it into the filed appendix, as they weren't cited specifically in the government screen. [00:23:41] Speaker 03: So the MSPB has the arbitrator's record? [00:23:44] Speaker 00: I can't speak to whether the MSPB has the arbitrator's record. [00:23:48] Speaker 00: The agency, the Social Security Administration, certainly has a record of everything that occurred before the arbitrator. [00:23:54] Speaker 03: They have the transcript? [00:23:57] Speaker 00: The transcript of the hearing? [00:23:59] Speaker 00: Yes, they have the transcript of the hearing. [00:24:00] Speaker 00: The transcript of the hearing, the relevant portions are included in the appendix here. [00:24:04] Speaker 03: The entire transcript? [00:24:05] Speaker 03: Yes. [00:24:06] Speaker 03: We asked for it, and the arbitrator didn't have it because he threw it out. [00:24:11] Speaker 00: The transcript of the hearing? [00:24:12] Speaker 03: Yes. [00:24:13] Speaker 00: OK. [00:24:13] Speaker 00: We could certainly get you the entire transcript of the hearing, Your Honors. [00:24:21] Speaker 00: Yes. [00:24:21] Speaker 00: But we were informed as well that the arbitrator threw out everything. [00:24:32] Speaker 00: Your Honor, we'd be happy to provide that. [00:24:36] Speaker 01: Anything further? [00:24:38] Speaker 00: I'm sorry? [00:24:39] Speaker 01: Anything further? [00:24:40] Speaker 00: If the court has no further questions, unless, Your Honor, we would just ask that and argue that the court should affirm the arbitrageous decision of removal from this right there. [00:24:50] Speaker 02: Thank you, Ms. [00:24:50] Speaker 02: Murphy. [00:24:52] Speaker 02: Mr. Galliato has two minutes for a bottle. [00:24:54] Speaker 05: Thank you, Your Honor. [00:24:58] Speaker 05: My understanding was the whole records before the court, the appendix is for convenience and I apologize. [00:25:08] Speaker 05: I'm astounded to find what's not there. [00:25:11] Speaker 05: And I'd ask that we supplement the appendix with the transcript and the [00:25:15] Speaker 05: exhibits concerning the comparators that we've been talking about. [00:25:20] Speaker 05: It seems that fairness requires that so that the court has a complete record and complete understanding. [00:25:25] Speaker 03: Well, it's a little late. [00:25:26] Speaker 03: I mean, sure the matter is that if your case is built on the specifics involved in the comparator cases, and you had an opportunity to present them to us to review, and you didn't do that, [00:25:40] Speaker 05: understood your honor but the arbitrator didn't comply with his responsibility his responsibility is only to supply us with a doctorate sheet your honor under the rules I will do whatever the court permits me to do but I think it is a matter of fairness those exhibits should be before the court they are referred to in the transcript that you do have and they're discussed in that transcript if the court doesn't think that's adequate then I again request that we be allowed to supplement [00:26:08] Speaker 05: Let me just say your honor Judge Dyke in response to your question What do you do if the agency has not been consistent the mystical case decided by this court? [00:26:17] Speaker 05: Discusses that they vacated the arbitrator's order decision and remanded the case There are two other Douglas factors. [00:26:26] Speaker 04: What is that case? [00:26:27] Speaker 05: It's a Security administration, it's cited in my brief and I'll give you the full site right now It is [00:26:40] Speaker 05: 863 Fed 3rd. [00:26:41] Speaker 03: What's the case? [00:26:43] Speaker 05: Miskell. [00:26:43] Speaker 05: M-I-S-K-I-L-L versus Social Security Administration. [00:26:48] Speaker 05: 863 Fed 3rd, 1373. [00:26:52] Speaker 05: This court, 2017. [00:26:57] Speaker 05: Let me just briefly mention it's discussed in the brief. [00:26:59] Speaker 05: There were two other Douglas factors for which, one, there was no evidence that a lesser penalty was even considered. [00:27:06] Speaker 05: That is a Douglas factor that is part of the equation, part of the calculus. [00:27:11] Speaker 05: And in terms of trust, we discussed at length in the brief that Ms. [00:27:16] Speaker 05: Ragsdale was always a trusted employee, that she was allowed to work [00:27:20] Speaker 05: From the time the agency first acknowledged that there had been altered records, which was in April until October, the agency says or the government says in its brief, well, normally people continue on while things are pending, not if they can't be trusted. [00:27:36] Speaker 05: They're not. [00:27:37] Speaker 05: If there's an immediate, if there's a true lack of trust that the person can't perform their duties, you stop them then and there. [00:27:44] Speaker 05: You don't allow them an opportunity. [00:27:46] Speaker 02: Council, I have to stop you there because your light is on. [00:27:51] Speaker 05: Case is submitted. [00:27:52] Speaker 05: And thank you for pronouncing my name correctly.