[00:00:02] Speaker 07:
There you are.

[00:00:03] Speaker 07:
All right.

[00:00:04] Speaker 07:
The first arguing case this morning is number 182100, Hollingsworth against the Department of Veterans Affairs.

[00:00:12] Speaker 07:
Mr. Magri, can you hear us all right?

[00:00:15] Speaker 06:
Yes, I can.

[00:00:16] Speaker 07:
Thank you.

[00:00:16] Speaker 07:
And can everyone on the panel hear?

[00:00:18] Speaker 07:
Mr. Magri, can you hear?

[00:00:20] Speaker 07:
Actually, we have the speaker here.

[00:00:23] Speaker 07:
Can you hear what he's saying?

[00:00:25] Speaker 00:
It's a little muffled, Your Honor, but as long as he speaks up, I think I'll be OK.

[00:00:30] Speaker 07:
Let's put the speaker up here.

[00:00:32] Speaker 07:
I think that will be all right.

[00:00:33] Speaker 07:
There's a microphone right here.

[00:00:37] Speaker 07:
Oh, is that it that he's coming through on the microphone?

[00:00:40] Speaker 03:
Go ahead and say something.

[00:00:44] Speaker 07:
Yes, well, let's stop the argument.

[00:00:47] Speaker 07:
And if it turns out...

[00:00:49] Speaker 07:
that there are communication or understanding problems, we'll readjust.

[00:00:53] Speaker 00:
Thank you, Your Honor.

[00:00:55] Speaker 07:
OK.

[00:00:56] Speaker 07:
So Mr. Bagri, please proceed if you're ready.

[00:01:00] Speaker 06:
OK.

[00:01:01] Speaker 06:
And good morning, Your Honors.

[00:01:04] Speaker 06:
I understand the first part of my argument is for 10 minutes and reserve five.

[00:01:12] Speaker 07:
That's right.

[00:01:13] Speaker 06:
It is undisputed.

[00:01:15] Speaker 06:
that the petitioner was terminated while on military leave in the uniformed services.

[00:01:22] Speaker 07:
Yes, and would you clarify for us, because it wasn't so clear to me in the brief, at first I assumed that she was just away for a few days, but how long had she been on military leave when the termination was done?

[00:01:37] Speaker 06:
She had left, I believe it was March 17th.

[00:01:42] Speaker 06:
Yes.

[00:01:45] Speaker 06:
I believe it's Appendix 0676, contains some of that specific information.

[00:01:52] Speaker 06:
But she left in March, I believe it was the 17th, and she received the termination notice and filed a claim with the Department of Labor

[00:02:10] Speaker 06:
She filed a Department of Labor claim on August 8th.

[00:02:14] Speaker 06:
She received the termination notice a few days before that.

[00:02:19] Speaker 07:
And... So she had been away and out of... Oh, yeah.

[00:02:25] Speaker 06:
She had been on... She was in the Air Force and they were involved in critical flying missions for

[00:02:36] Speaker 06:
for injured people and also with evacuation things from certain areas where there's, where there were national disasters.

[00:02:45] Speaker 06:
So as a result, some of those.

[00:02:48] Speaker 03:
Can you hear us?

[00:02:51] Speaker 07:
Can you hear Judge Wallach?

[00:02:53] Speaker 03:
I can.

[00:02:54] Speaker 03:
Okay.

[00:02:54] Speaker 03:
First thing you have to figure out how to do is not talk on the judge's topic.

[00:02:59] Speaker 06:
I'm sorry.

[00:03:01] Speaker 03:
We discussed it might be a problem because you can't see us.

[00:03:05] Speaker 03:
But explain me from the record, when was the decision made to terminate Ms.

[00:03:11] Speaker 06:
Hollingsworth?

[00:03:13] Speaker 06:
July of 2017.

[00:03:16] Speaker 06:
Okay.

[00:03:18] Speaker 03:
And when was that instituted?

[00:03:20] Speaker 03:
When was the request made to terminate her?

[00:03:25] Speaker 06:
I don't believe that that's instituted.

[00:03:28] Speaker 06:
It was instituted on July 17th.

[00:03:30] Speaker 06:
It relied on evidence that went right up to July 6th.

[00:03:35] Speaker 06:
In fact, the piece of evidence the agency argues the strongest about an alleged privacy violation that wasn't occurred but was not found until July 6th, 2017.

[00:03:49] Speaker 06:
There was a

[00:03:54] Speaker 06:
request for termination that was made on December 20 by someone who did not have the authority to terminate and testified that that wasn't a final decision by her because it could always be changed.

[00:04:15] Speaker 06:
If you look at the termination file, it makes clear

[00:04:23] Speaker 06:
that the termination decision was based on most of the evidence, in fact, was after the December 20, 2016 date.

[00:04:38] Speaker 06:
It was in January, February, March, April, June, and July.

[00:04:46] Speaker 07:
So from March 17 until this letter was received at her,

[00:04:52] Speaker 07:
mailed to her home address, is that what happened?

[00:04:55] Speaker 06:
It was mailed to her mother's address.

[00:04:58] Speaker 07:
So it was mailed, so it was received by someone in her family who said you have a letter and said in five days that's the end?

[00:05:06] Speaker 07:
And was there any interaction at all during this period while she was on military duty?

[00:05:15] Speaker 06:
Well, there was interaction.

[00:05:16] Speaker 06:
For example, she was docked

[00:05:20] Speaker 06:
for benefits she, under the VA rules and military laws, she didn't have to pay.

[00:05:29] Speaker 07:
But was she, did she know?

[00:05:31] Speaker 06:
Yes, she learned of that and complained about that while she was away because she'd received a message saying that her pay was being docked.

[00:05:44] Speaker 06:
So there was communication

[00:05:46] Speaker 06:
between them.

[00:05:47] Speaker 06:
They knew precisely where Sheila was.

[00:05:49] Speaker 06:
When she left for military leave, she told them the day, which originally was about 30 days out, but that was extended by the military because of their needs until September 6, and she gave them notice of the extension until September 6.

[00:06:15] Speaker 06:
And all of this is summarized in the Department of Labor USERRA complaint that you filed, as well as in the MSPB filing.

[00:06:29] Speaker 06:
And those are in the area of Appendix 0678, the pages before, and that as well.

[00:06:42] Speaker 06:
Mr. Magring?

[00:06:44] Speaker 06:
But there's no doubt now, counsel.

[00:06:48] Speaker 07:
Judge Lynn has a question.

[00:06:50] Speaker 05:
Mr. Magries, this is Judge Lynn.

[00:06:53] Speaker 05:
You argue in your brief that she was entitled to notice because the USERRA provision that applies to her specifies that she can only be terminated for cause, correct?

[00:07:07] Speaker 06:
I didn't argue that she was entitled to notice.

[00:07:11] Speaker 06:
I argued that she was entitled to cause.

[00:07:14] Speaker 05:
What you're not arguing are you that she's entitled to the same formalities of a foreclose showing... That the agency argues or that the administrative judge argued were applicable under a different statute?

[00:07:29] Speaker 06:
No, I wasn't making that argument.

[00:07:31] Speaker 06:
Never have.

[00:07:32] Speaker 06:
It's not any filing that she's made with USERA, with the MSPB.

[00:07:37] Speaker 06:
She has always maintained her rights under USERA, 4311,

[00:07:43] Speaker 06:
and 43-12 to 18.

[00:07:45] Speaker 06:
That's what she argued for.

[00:07:47] Speaker 06:
And cause is what is required by 5 CFR 353-209.

[00:07:53] Speaker 05:
Well, it's clear from the record, is it not, that the agency did have non-pretextual reasons unrelated to her military service?

[00:08:04] Speaker 06:
Oh, it absolutely is not.

[00:08:06] Speaker 06:
They never attempted to establish anything other

[00:08:11] Speaker 06:
than a probationary termination.

[00:08:14] Speaker 06:
The record itself is a disaster in the nature of how it addressed cause because the decision by the A.J.

[00:08:29] Speaker 06:
was based solely on whether or not this was a probationary termination.

[00:08:36] Speaker 06:
In other words,

[00:08:37] Speaker 06:
and which is basically a discretionary by the student.

[00:08:41] Speaker 03:
Counsel, let me ask you a couple of questions.

[00:08:43] Speaker 03:
This is Judge Wallach.

[00:08:45] Speaker 03:
Yes.

[00:08:46] Speaker 03:
As it pertains to Ms.

[00:08:47] Speaker 03:
Hollingworth's allegation concerning the two-week long delayed request for military leave, how many times did Ms.

[00:08:56] Speaker 03:
Hollingworth, I know she asked, okay, and then two weeks later she sent a notice saying, in effect, hey, what's going on?

[00:09:04] Speaker 03:
Were there any other times within that two-week period?

[00:09:10] Speaker 06:
You know, she actually filed a harassment complaint on December 14th, if that's within the two-week time period, yes.

[00:09:20] Speaker 06:
And it was a period from initial request.

[00:09:23] Speaker 03:
Wait a minute.

[00:09:23] Speaker 03:
Counsel.

[00:09:24] Speaker ?:
Yep.

[00:09:25] Speaker 03:
Listen, was that harassment complaint a leave request?

[00:09:34] Speaker 06:
That harassment complaint involved the fact that she had not had her leave requests granted, and it was made to the agency, not outside the agency.

[00:09:47] Speaker 03:
My understanding of the record is that when she made her second request, and as I recall it was by email, the response was almost instantaneously saying, you're going to get your leave.

[00:10:02] Speaker 03:
Is that not correct?

[00:10:04] Speaker 06:
That email exchange occurred, but the leave was not granted.

[00:10:09] Speaker 06:
And as far as the record goes, there was conversation with the... Wait, wait, wait, wait, wait.

[00:10:19] Speaker 03:
Answer questions, okay?

[00:10:21] Speaker 03:
I know it's difficult because you can't see it.

[00:10:25] Speaker 03:
So, you're saying that she never received leave?

[00:10:34] Speaker 06:
she returned from the military, the physical that she had to take.

[00:10:44] Speaker 06:
And according to the testimony of the administrative officer, that occurred because the administrative officer told Donna Griffin Hall that she could not deny the request.

[00:11:03] Speaker 03:
answers beyond your you simply got lose time that's all are you already under your rebuttal time where in the record is best evidence or proof

[00:11:17] Speaker 03:
Well, let me ask you this.

[00:11:19] Speaker 03:
What came of the harassment complaint that was submitted on December 14, 2016?

[00:11:24] Speaker 03:
I note in the record some discussion of a proposed mediation.

[00:11:30] Speaker 03:
Was that the way in which it was resolved?

[00:11:33] Speaker 06:
It was investigated by a supervisor named Christine Brown.

[00:11:44] Speaker 03:
Was it resolved?

[00:11:46] Speaker 03:
You say it was investigated.

[00:11:48] Speaker 06:
Well, she took a statement from each party, and Brown said that because leave was granted, that would be the end of that one.

[00:12:01] Speaker 03:
Okay, so is it your position it was resolved?

[00:12:04] Speaker 06:
Well, she got the leave.

[00:12:07] Speaker 06:
Yes, she did.

[00:12:08] Speaker 03:
Okay, turning to Joint Appendix 2817, do you have that in front of you?

[00:12:32] Speaker 03:
I'm sorry, I've got a wrong number there.

[00:12:42] Speaker 06:
Just go ahead.

[00:12:48] Speaker 06:
The position here is, you know, there were claims, you're asking me about a claim that was made before the termination claim, and the termination claim required cause and should be reversed.

[00:13:01] Speaker 06:
And what the agency did here is not only a probationary termination as opposed to a cause termination.

[00:13:11] Speaker 06:
The reason for 353-209 is that if one has a, if one is allowed to terminate someone while they're on military leave without cause, then

[00:13:30] Speaker 06:
It allows the agency to avoid, not only 353209, but avoid the burden of proof it would have under 5 CFR 1201.56, friends, small b, two little i's, and allows the agency to avoid, most importantly, re-employment rights, which is why OPM describes that regulation as being protection

[00:13:58] Speaker 06:
for rights.

[00:14:02] Speaker 06:
And that's exactly what happened here.

[00:14:06] Speaker 06:
The agency, while she was on leave, should have required that any decision be made after she returned from leave.

[00:14:21] Speaker 06:
Subject, of course, to re-employment rights.

[00:14:24] Speaker 06:
By not doing so, they denied her her reemployment rights.

[00:14:29] Speaker 06:
I think that is, quite frankly, open and shut in this case.

[00:14:33] Speaker 06:
As far as the initial claim she made, which rise or fall on whether there was discrimination, I believe that once it's determined that the... I'd make many arguments in the brief concerning the evidence

[00:14:54] Speaker 06:
with regard to those initial claims.

[00:14:58] Speaker 06:
I believe the exclusion of evidence by the judge was violative of the law.

[00:15:07] Speaker 02:
You should know that there are other views of the record, counsel.

[00:15:12] Speaker 06:
I do.

[00:15:14] Speaker 06:
I do.

[00:15:14] Speaker 06:
I know the judge gave a view of the record.

[00:15:17] Speaker 06:
I know the agency has given a view of a record and I've responded to

[00:15:22] Speaker 07:
to that record and... Okay, so let's hear from the government and we'll save you rebuttal time, Mr. Magri.

[00:15:33] Speaker 07:
Thank you.

[00:15:38] Speaker 07:
Ms.

[00:15:38] Speaker 07:
Kristyniak.

[00:15:39] Speaker 07:
Thank you, Your Honor.

[00:15:41] Speaker 07:
I think that it would be very helpful

[00:15:44] Speaker 07:
to ask if you were to, at the threshold, clarify the government's position about whether for an employee in the probationary period, as we have here, is subject to the probationary rules, or whether the USERRA, which by its text seems to be broader and to require cause when the issue is raised under USERRA, as it is here.

[00:16:13] Speaker 00:
Yes, Your Honor.

[00:16:15] Speaker 00:
So here we have a situation where the actions taken by the agency are in accordance with both the requirements of the Civil Service Reform Act, which is mandatory language that says that they shall evaluate a probationary employee for their fitness before retaining them and entitling them to the greater benefits under Chapter 75, and USERA, which says the determination shall not be associated with anything to do with their military leave, but rather only for cause.

[00:16:39] Speaker 00:
Here the agency in making the determination to terminate her compiled a termination record that had eight different instances in it of conduct that she had engaged in, which was the justification for her termination.

[00:16:52] Speaker 00:
I will note Mr. Magri had indicated that there were

[00:16:55] Speaker 00:
events in the file that occurred in April and June, as he indicated she was on military leave at that time, so there were not events from April and June in that file.

[00:17:03] Speaker 00:
I would direct the court to the appendix at pages 1576 through 1653, which is the full termination packet that was received by HR and considered by HR pursuant to the policy of the agency.

[00:17:18] Speaker 07:
But you're talking about the substance of whether, in fact, there was cause

[00:17:23] Speaker 07:
And I think we need to establish, because there wasn't anything in your briefs or that we found, at least at this stage, saying that under the

[00:17:38] Speaker 07:
that when your claim is under you, Sarah, you nonetheless are subject to the probationary rules, in which case the substance, the merits don't count during the first year.

[00:17:51] Speaker 07:
But otherwise, the question of whether she received notice and all the rest of it being away for four months on military leave is quite a complex issue.

[00:18:04] Speaker 07:
And I gather from your briefs that you keep trying to say it doesn't matter because during the probationary period, there just aren't any appeal rights.

[00:18:12] Speaker 07:
Forget it.

[00:18:14] Speaker 00:
So there are obviously appeal rights.

[00:18:15] Speaker 07:
Except for the very limited political reasons and so on that are not here raised by anybody.

[00:18:24] Speaker 00:
Yes, I would direct the court to regulation from you, Sarah, at 5 CFR 353.108.

[00:18:30] Speaker 07:
Does it say anything about probationary employees?

[00:18:34] Speaker 00:
But it says that if during the period of injury, because that section also relates to compensable injury during a job,

[00:18:40] Speaker 00:
or the performance of uniformed service, conduct is such that it would disqualify him or her from employment under OPM or agency regulations, then restoration rights may be denied.

[00:18:51] Speaker 00:
And so we read that regulation to mean that, of course, USERA means you cannot terminate them for anything related to anti-military bias.

[00:18:58] Speaker 00:
If they need to leave their job and go and serve in their reservist capacity, they absolutely must be permitted to do that.

[00:19:03] Speaker 00:
However, that does not obviate the requirements of the Civil Service Reform Act.

[00:19:07] Speaker 00:
The Civil Service Reform Act

[00:19:09] Speaker 00:
exists so that agencies have an opportunity to spend a year with these employees and get to know them and see if they're the right fit with the agency before they are subject to the heightened termination requirements under Chapter 75.

[00:19:20] Speaker 00:
And so here what happened in the agency and what the AJ at the MSPB did was an interpretation of those two statutes that harmonizes them essentially.

[00:19:31] Speaker 03:
Pardon me, but it seems to me from this record

[00:19:37] Speaker 03:
that the cause exists no matter how you look at it.

[00:19:41] Speaker 03:
The communication, right really from the beginning, the communications with subordinates, the communications with superiors, the taking a position that you're entitled to a GS-13 slot

[00:20:01] Speaker 03:
when statutorily you can't fill that GS-13 unless you've been a GS-12 for at least a year.

[00:20:11] Speaker 03:
And that's fine if you simply assert the existence of that and somebody says, no, you're incorrect, but rather aggressively saying that your failure to place me into this GS-13 position is in fact

[00:20:31] Speaker 03:
evidence of discrimination.

[00:20:34] Speaker 03:
All of that says to me, it's for cause.

[00:20:38] Speaker 03:
Under a USERA, and by the way, I was a brigade JAG for six years and did a lot of USERA work.

[00:20:45] Speaker 03:
And this just screams cause.

[00:20:48] Speaker 00:
Absolutely, Your Honor.

[00:20:49] Speaker 00:
And that's the reading of the two regulations we would urge the court to, one that permits an agency to fully operate under the Civil Service Reform Act.

[00:20:57] Speaker 07:
If someone is to be removed for cause,

[00:20:59] Speaker 07:
You have to comply with the cost requirements.

[00:21:02] Speaker 07:
You have to give a notice of proposed removal, an opportunity to respond, perhaps, in some cases at least, some sort of performance improvement plan.

[00:21:13] Speaker 07:
Instead, you write a letter and say, school's out.

[00:21:16] Speaker 07:
Your last day is whatever it is three days from now.

[00:21:19] Speaker 00:
So the Civil Service Reform Act and the USERA, neither of them require any of that.

[00:21:25] Speaker 00:
Obviously the probationary employees are not entitled to notice or to counseling.

[00:21:28] Speaker 00:
And I would point the court to the state version of the USERA statute, which appears at 20 CFR.

[00:21:34] Speaker 00:
1002.248, which does include that framework that, Judge Newman, you're talking about, which is notice and a determination that it's reasonable.

[00:21:43] Speaker 00:
That language is in the private sector one.

[00:21:46] Speaker 00:
It's not in the federal employee version of the statute.

[00:21:49] Speaker 07:
But she was removed on the probationary principle that during the first year, a person can be removed.

[00:21:56] Speaker 07:
That ends it.

[00:21:57] Speaker 07:
And we're writing you a letter and saying, you know, bother to come back from your military leave.

[00:22:04] Speaker 07:
And so the procedure that was followed was the procedure that perhaps is used for probationary employees, but we're told there was cause.

[00:22:17] Speaker 07:
But she wasn't removed under the procedures that the government has established for removal for cause, even though there's a good deal, as Judge Wallach has said,

[00:22:27] Speaker 07:
mentioned in the record saying that this was an appropriate removal for cause.

[00:22:33] Speaker 07:
So I think we have to resolve the threshold.

[00:22:36] Speaker 07:
The question of whether, when there is a USERRA issue, that you're entitled to the procedures of removal for cause or not.

[00:22:50] Speaker 00:
So we would argue that not because probationary employees are not entitled to the protections of Chapter 75.

[00:22:56] Speaker 00:
The Section 20 of the CFR, which again relates to USERRA within the private sector and state governments, specifically sets out that there must be notice and a determination of reasonableness

[00:23:05] Speaker 00:
And then we have the federal statute or the federal regulation that just says for cause.

[00:23:10] Speaker 00:
And so the requirements of that are that there must be some cause.

[00:23:14] Speaker 00:
It must not be associated in any way with their requirement to perform their military service.

[00:23:20] Speaker 00:
But there is not this requirement for notice.

[00:23:22] Speaker 00:
And this court obviously has not addressed this question before.

[00:23:24] Speaker 04:
So you're saying the only requirement is a reasonableness requirement, not a notice requirement?

[00:23:30] Speaker 00:
So I think the court does not necessarily need to set the basement here, right, and decide exactly how low the cause must be in order to be in agreement with USERRA and the Civil Service Reform Act, because as Judge Wallach has pointed out, there is ample evidence within the record that there was a significant amount of cause here.

[00:23:49] Speaker 00:
Again, this court has not addressed that issue.

[00:23:53] Speaker 00:
We cited in our brief two MSPB cases that deal with precisely this issue.

[00:23:58] Speaker 00:
One from 2007, Boucher, that said that it was a sufficient reason is what cause means within specifically this.

[00:24:06] Speaker 07:
But what are you telling us?

[00:24:07] Speaker 07:
We don't see, there is no basis for appeal of probationary removals.

[00:24:15] Speaker 07:
unless it's for political reasons or whatever, marital discrimination.

[00:24:20] Speaker 07:
So we don't see, we don't decide whether it's reasonable or not.

[00:24:25] Speaker 07:
You're telling us that it was reasonable, but that's not the question.

[00:24:30] Speaker 07:
The question is, in the first place, is this appealable under the standard removal for cause procedures which have access to this court?

[00:24:40] Speaker 07:
And if so,

[00:24:42] Speaker 07:
How come she was not given notice and opportunity to respond and all of the things that we've been seeing all these years and that the statutes require for federal employees?

[00:24:54] Speaker 00:
So, again, our position is that the larger statutes under Chapter 75 are not applicable here.

[00:25:01] Speaker 00:
To the extent the Court wanted to apply perhaps the standard that applies to the private sector, again, we would argue that it's because that language does not appear in the federal regulations, it should not apply here.

[00:25:11] Speaker 00:
But that language in 20 CFR says that the

[00:25:16] Speaker 00:
express notice, which is express or can be fairly implied.

[00:25:20] Speaker 00:
So if you look at Miss Hollingsworth here, she received a notice in November 17th of 2016, a memorandum of counseling from her supervisor saying that you're engaging in inappropriate communications.

[00:25:30] Speaker 07:
Here's the code.

[00:25:31] Speaker 07:
She was fired.

[00:25:32] Speaker 07:
She was not given an opportunity to respond.

[00:25:35] Speaker 07:
She said that your last day is, whatever it is, five days from now, went in the mail so that it wasn't even five days.

[00:25:43] Speaker 00:
Right.

[00:25:44] Speaker 00:
And yes, because the language of USERA does not specifically imply that employees who are subject to USERA are not required to comply with the requirements of the Civil Service Reform Act.

[00:25:58] Speaker 00:
And that is something that Congress could have done.

[00:26:01] Speaker 03:
My take on this is that USERA protects against anti-military bias, which you see all the time.

[00:26:08] Speaker 03:
Yes.

[00:26:10] Speaker 03:
and sometimes in the government.

[00:26:12] Speaker 07:
But even in the VA?

[00:26:13] Speaker 07:
The other side, the employer, is the VA to say there's a military bias?

[00:26:18] Speaker 03:
No, it protects against anti-military bias.

[00:26:22] Speaker 03:
So if there was, and she's made an allegation of that, that's a legitimate beat.

[00:26:30] Speaker 03:
And certainly, she has a claim before this court.

[00:26:35] Speaker 03:
But the for-cause court has to take into account

[00:26:40] Speaker 03:
the reasons that you can terminate someone in their employment.

[00:26:44] Speaker 03:
And if the reason is because they just took the job and it turns out they're not qualified and they're a pro, then you can do it that way.

[00:26:54] Speaker 03:
As long as you don't have

[00:26:55] Speaker 03:
and improper causation.

[00:26:59] Speaker 00:
Absolutely.

[00:27:00] Speaker 00:
And I would point the court to the to the MSPB decision.

[00:27:03] Speaker 00:
Opposing counsel has noted that the language talking about cause appears in a footnote, but pages nine through 19 in the appendix of that decision are 11 pages on exactly that issue that Judge Wallach just mentioned, which is this idea that it was a pretext for firing her.

[00:27:18] Speaker 00:
So he walks through the AJ walk through all six or seven pretextual reasons that she asserted.

[00:27:22] Speaker 00:
address each one in turn.

[00:27:24] Speaker 00:
And the obvious other side of that, if you determine that it's not a pretext, that means you're determining that there was actually cause that these events actually did occur.

[00:27:35] Speaker 07:
So are you telling us that these are considerations that just don't apply because this was in the probationary period?

[00:27:43] Speaker 00:
Absolutely not, Your Honor.

[00:27:44] Speaker 00:
The MSPB was considering whether or not there was any anti-military bias associated with the decision to terminate her as a probationary employee.

[00:27:51] Speaker 07:
The spirit behind- Well, why would the MSPB be considering that if, in fact, the law is that any federal employee

[00:28:00] Speaker 07:
can be removed during the probationary period, except for the two statutory considerations that everyone agrees don't here apply.

[00:28:10] Speaker 00:
Right.

[00:28:10] Speaker 00:
So the MSPB essentially found a reading of the two statutes that harmonizes the two of them, right?

[00:28:15] Speaker 00:
Made a determination of whether or not there was cause, said that there was, quote, ample cause for terminating her.

[00:28:20] Speaker 00:
And then, again, in a 23-page opinion, after hearing- The agency didn't say the cause.

[00:28:25] Speaker 07:
Over and over, the agency keeps saying, this is a probationary removal.

[00:28:31] Speaker 00:
Yes, I'm not sure that the cause requires the agency to say we are making a termination for cause.

[00:28:37] Speaker 00:
They said this is a probationary removal because they're not invoking the Chapter 75 requirements and the Douglas Factors and all of that analysis.

[00:28:45] Speaker 00:
But as I said, there's the termination packet that was presented to HR, which included the eight different instances of conduct that she had engaged in.

[00:28:52] Speaker 07:
But the USERRA statute does not say

[00:28:54] Speaker 07:
that probationary employees are not covered.

[00:28:58] Speaker 07:
The USERA statute, just on its face, to achieve the purposes that Judge Wallach has mentioned, puts the employees within the system.

[00:29:08] Speaker 07:
And if they're removed under USERA, they're entitled to notice and an opportunity to respond.

[00:29:14] Speaker 07:
And there's absolutely no debate that that was not done here.

[00:29:18] Speaker 00:
The USERA statutes do not say notice and opportunity to respond, Your Honor.

[00:29:22] Speaker 07:
It doesn't say either way.

[00:29:23] Speaker 07:
It does not say otherwise.

[00:29:25] Speaker 07:
It's silent.

[00:29:26] Speaker 07:
And I think that the threshold question we need to decide is whether USERRA is also subject that if you're a probationary employee, you can't appeal under USERRA either.

[00:29:40] Speaker 03:
Does the government disagree that if a probationary employee was terminated because their supervisor said, this person is in the armed force of the United States and I hate them,

[00:29:53] Speaker 03:
that when they got that notice of determination, they could take it up complaining of a USERA violation.

[00:29:58] Speaker 00:
Absolutely, Your Honor.

[00:29:59] Speaker 00:
Absolutely, we would agree with that.

[00:30:01] Speaker 00:
And that was the basis for the MSPB finding jurisdiction.

[00:30:03] Speaker 00:
The government did not assert that the MSPB did not have jurisdiction over Ms.

[00:30:06] Speaker 00:
Hollingsworth's appeal.

[00:30:08] Speaker 00:
A three-day hearing was heard.

[00:30:10] Speaker 00:
Almost 700 pages of trial testimony, 18 different witnesses came in and spoke to the AJ.

[00:30:14] Speaker 00:
And eventually, he wrote a 23-page opinion.

[00:30:17] Speaker 03:
And that employee has an absolute right to make that claim.

[00:30:20] Speaker 03:
Absolutely.

[00:30:21] Speaker 03:
Absolutely, Your Honor.

[00:30:23] Speaker 07:
That makes sense.

[00:30:24] Speaker 07:
But in that case, why doesn't that employee come under the standard rules of notice and an opportunity to respond?

[00:30:32] Speaker 07:
Here, as Hollingsworth was removed under the probationary rules that school, as I say, it's over, your employment's over.

[00:30:41] Speaker 07:
Don't bother to come back.

[00:30:43] Speaker 00:
Right, so I would point the court to the definition of employee under Chapter 75 at 5 USCA 7501 that says employee is an individual in the competitive service who is not serving in a probationary or trial period.

[00:30:56] Speaker 00:
So she's not because she's a probationary employee and that's never been contested.

[00:30:59] Speaker 00:
that takes her out of the chapter 75 notice and requirement.

[00:31:03] Speaker 00:
And then again, I would point the court to the fact that the private sector regulation does specifically say notice and reasonableness, and the public sector one does not say that, or the federal one specifically.

[00:31:16] Speaker 00:
And of course, I see that my time is up, Your Honor.

[00:31:19] Speaker 00:
May I finish?

[00:31:20] Speaker 00:
And so the point of USERA is to ensure that a military service member is not penalized for having served in any capacity for their military right.

[00:31:30] Speaker 00:
It does not mean that they are given an advantage above their colleagues.

[00:31:34] Speaker 00:
If their colleague who is also probationary could be terminated during their first year for conduct identical to what Ms.

[00:31:39] Speaker 00:
Hollingsworth engaged in, then Ms.

[00:31:40] Speaker 00:
Hollingsworth too must be permitted to be terminated for that reason.

[00:31:43] Speaker 05:
One quick question before you sit down.

[00:31:46] Speaker 05:
Just hypothetically speaking, if the circumstances here were somewhat different and the records show that basically Ms.

[00:31:57] Speaker 05:
Hollingsworth's colleagues sort of concluded that, you know, she really, she doesn't fit.

[00:32:03] Speaker 05:
Let's let her go.

[00:32:04] Speaker 05:
And that's all they said.

[00:32:06] Speaker 05:
And just to make the hypothetical a little more interesting, there was also a memo that said, we're fine with the fact that she serves in the military.

[00:32:16] Speaker 05:
That's not our problem.

[00:32:18] Speaker 05:
We just don't think she fits.

[00:32:20] Speaker 05:
Is that enough?

[00:32:21] Speaker 05:
Would that meet the required definition for cause?

[00:32:25] Speaker 00:
That would be a much closer case, and that's not something that this court... That's why I understand.

[00:32:29] Speaker 00:
Yes, I understand that, Your Honor.

[00:32:31] Speaker 00:
That would be obviously a much closer case because, you're right, then where does the language of CSRA that says does not fit in well or is not a great fit for the agency versus for cause, that I think the agency would have a lot more difficulty with that.

[00:32:42] Speaker 00:
I'm not aware of any legal decisions addressing that specifically.

[00:32:45] Speaker 00:
And here, of course, as I've noted, there's eight instances of misconduct on her part that gave the agency significant cause for her termination during her probationary hearing.

[00:32:54] Speaker 07:
But under the law for probationary employees, we'd never look into that.

[00:32:59] Speaker 07:
That would never reach us.

[00:33:01] Speaker 07:
I don't know what might be before the MSPB, but that would not come under Chapter 75, and we'd never see it.

[00:33:08] Speaker 07:
It's not appealable.

[00:33:09] Speaker 00:
Correct.

[00:33:09] Speaker 00:
However, if there were a service member in that instance, they would be able to appeal under the USERRA provisions, which, of course, with that for-cause language, they could... If they could assert it in good faith.

[00:33:18] Speaker 00:
Yes, if they could in good faith assert that it was just that I didn't fit in, it had nothing to do with what I did wrong in the office, and therefore that is not high enough to reach for cause, that certainly would be within MSPB's value and then something that this court could review on appeal.

[00:33:31] Speaker 07:
During the probationary period?

[00:33:33] Speaker 07:
No.

[00:33:34] Speaker 00:
Yes, Your Honor, yes.

[00:33:35] Speaker 00:
I mean, nobody contested the jurisdiction of Ms.

[00:33:37] Speaker 00:
Hollingsworth here to appeal her.

[00:33:40] Speaker 07:
This is really the problem.

[00:33:43] Speaker 07:
It looks as if the VA over and over kept saying this is a probationary period for whatever reason if they thought she didn't fit.

[00:33:53] Speaker 07:
So being out of the office for four months and serving the military,

[00:33:59] Speaker 07:
was perhaps a good excuse to write a letter and not get any back talk from what looked like a pretty strong personality.

[00:34:09] Speaker 00:
Certainly, if there were any evidence that the AJ had heard that the reason why she was terminated was because she was on an extended military leave, that would be a significantly different issue for this court.

[00:34:18] Speaker 00:
There was, again, over 700 pages of trial transcript, 18 witnesses that came and talked.

[00:34:22] Speaker 00:
And it's notable, Ms.

[00:34:23] Speaker 00:
Hollingsworth testified for, excuse me, Your Honor, I see.

[00:34:27] Speaker 03:
Well, what's notable is that the AJ

[00:34:29] Speaker 03:
determinations of credibility.

[00:34:31] Speaker 00:
He did.

[00:34:32] Speaker 00:
He did.

[00:34:32] Speaker 00:
And he determined that he credited the testimony of Ms.

[00:34:36] Speaker 00:
Shaw-Hillman and Ms.

[00:34:36] Speaker 00:
Donna Griffin-Hall, who were her supervisor and another woman who worked in the office, over Ms.

[00:34:41] Speaker 00:
Hollingsworth.

[00:34:43] Speaker 00:
Of nearly 150 pages of testimony from Ms.

[00:34:45] Speaker 07:
Hollingsworth, she...

[00:34:49] Speaker 00:
Her testimony was about cause.

[00:34:51] Speaker 00:
She spoke about military animus for fewer than three pages in her over 150 pages of testimony that she actually gave before the AJ, at least those portions that have been included in the record before us.

[00:35:00] Speaker 00:
And so really, the issue that the AJ was grappling with was that central issue, was there a pretext for terminating her, which is the question of if there was no pretext, then there must have been cause.

[00:35:11] Speaker 07:
Any more questions?

[00:35:14] Speaker 00:
If there are no further questions, we respectfully request that the Court affirm the decision of the MSPB.

[00:35:19] Speaker 00:
Thank you.

[00:35:21] Speaker 07:
Thank you.

[00:35:22] Speaker 07:
Mr. Magri, are you here?

[00:35:25] Speaker 07:
You have your full rebuttal time.

[00:35:27] Speaker 06:
I surely am, and I have three specific points I would like to make.

[00:35:31] Speaker 06:
First of all, the argument that the non-federal government employee definition that's in 20 CFR

[00:35:41] Speaker 06:
does not apply is accurate, but the concept that the CAUSE standard in the OPM regulation includes the exact same thing is clear because Carter was the, Carter VUS, which is 407 F2D 1238 at 1245 DC SER 1968,

[00:36:10] Speaker 06:
was a federal employee case and defined cause the precise same way.

[00:36:15] Speaker 06:
So when OPM defined cause, it didn't need to do what they did in the Department of Labor.

[00:36:23] Speaker 06:
The Department of Labor needed to do that because there was no definition at that point.

[00:36:29] Speaker 03:
Now, the second point is... Let me ask you a question, counsel.

[00:36:33] Speaker 03:
This is Judge Waller.

[00:36:35] Speaker 03:
I wanted to direct you previously to 2817 in the appendix.

[00:36:41] Speaker 03:
This will all clean up for me.

[00:36:44] Speaker 03:
It's in the, maybe the last volume or... I have it.

[00:36:48] Speaker 03:
Okay.

[00:36:49] Speaker 03:
There's handwriting at the bottom of that page.

[00:36:51] Speaker 03:
Do you know whose that is?

[00:36:59] Speaker 06:
I'm not sure that I do, Your Honor.

[00:37:02] Speaker 03:
Okay, thanks.

[00:37:03] Speaker 06:
The, uh, and I would like to address a couple of other

[00:37:10] Speaker 06:
comments.

[00:37:10] Speaker 06:
The discussion about chapter 75-03 is addressed in our brief, both in the argument and if the courts look at the jurisdictional statement.

[00:37:26] Speaker 06:
The court has jurisdiction not only for under 75

[00:37:32] Speaker 06:
Chapter 75, it has jurisdiction under 38 U.S.C.

[00:37:38] Speaker 06:
Section Symbol 4324D1.

[00:37:42] Speaker 06:
And that gives people the right to appeal re-employment rights.

[00:37:49] Speaker 06:
Now, you, Sarah, I would agree with you, Your Honor, that discrimination is key if the claim is being made under Section 4311.

[00:38:01] Speaker 06:
And or A, which is discrimination or B, which is retaliation.

[00:38:07] Speaker 06:
But when you have a case as here, which also included reemployment claims, that does not require the employee to show discrimination or because the whole concept of the reemployment claim is that

[00:38:26] Speaker 06:
The employee needs to give time to be adjusted from military service to civilian service.

[00:38:35] Speaker 06:
And the statute recognizes that.

[00:38:39] Speaker 06:
And the regs try to protect that.

[00:38:41] Speaker 06:
So it doesn't require discrimination.

[00:38:44] Speaker 06:
It requires cause.

[00:38:47] Speaker 06:
Yes.

[00:38:48] Speaker 03:
This is Judge Wallach.

[00:38:50] Speaker 03:
Did Ms.

[00:38:51] Speaker 03:
Hollingworth

[00:38:52] Speaker 03:
continue until her termination to be employed by the government?

[00:39:00] Speaker 06:
Until her termination?

[00:39:02] Speaker 06:
That's a question which I don't think was litigated here.

[00:39:17] Speaker 06:
It's a question of fact.

[00:39:21] Speaker 06:
The answer is that if you make a re-employment claim, OPM regulations say that if you're terminated while on leave... You're not answering my question, counsel.

[00:39:36] Speaker 06:
I believe the concept of re-employment indicates that while on military leave, you're on military leave.

[00:39:44] Speaker 06:
And that is what is... You're working for the military at that point.

[00:39:51] Speaker 03:
Was it the position of the government up until she was terminated that she was an employee of the United States?

[00:40:02] Speaker 06:
I think the position of the government is clear that at any point in time they could terminate her as a probationary employee.

[00:40:10] Speaker 03:
You're not answering my question.

[00:40:11] Speaker 06:
That's a factual question.

[00:40:14] Speaker 06:
All I can tell you about the government's position is what the government said and did.

[00:40:21] Speaker 06:
What they were thinking in their mind is not something I can address.

[00:40:25] Speaker 03:
They terminated her on a date.

[00:40:27] Speaker 03:
That's correct, right, in August?

[00:40:30] Speaker 06:
No, the date was July 17th, 2017, but it was not... Council.

[00:40:37] Speaker 03:
Yeah?

[00:40:37] Speaker 03:
Prior to July 17th, it was the position of the government that she was not terminated.

[00:40:44] Speaker 03:
Is that correct?

[00:40:46] Speaker 03:
Oh, yeah.

[00:40:48] Speaker 03:
So she was an employee.

[00:40:51] Speaker 05:
And the payroll records would reflect that.

[00:40:54] Speaker 06:
Yes.

[00:40:55] Speaker 06:
I mean, she was an employee in that sense.

[00:40:58] Speaker 06:
Reemployment rights, really.

[00:40:59] Speaker 06:
But when you are on military leave, you have the right to come back.

[00:41:08] Speaker 06:
And that, in your theory, gives you that right.

[00:41:12] Speaker 06:
And it cannot be interfered with.

[00:41:16] Speaker 06:
If you have some complaint,

[00:41:18] Speaker 06:
If you have an alleged cause or anything else while someone's on military leave, you have to reinstate that employee and then try to address those claims.

[00:41:31] Speaker 06:
And the notice that people are talking about, while Chapter 75, 01, et cetera, has a notice provision, the notice provision here comes in the cause language of you, Sarah.

[00:41:48] Speaker 06:
and it's set forth as the second requirement in both the 20 CFR and also the Carter decision.

[00:41:56] Speaker 06:
And that's the notice that Ms.

[00:41:59] Speaker 06:
Hollingsworth has been talking about.

[00:42:03] Speaker 06:
But the key here is when that was never litigated,

[00:42:08] Speaker 06:
The evidentiary was not part of the agency decision.

[00:42:12] Speaker 06:
It was never litigated before the A.J.

[00:42:15] Speaker 06:
The A.J.

[00:42:16] Speaker 06:
made numerous evidentiary rulings that kept evidence out that related to those things and the reasonableness of the decision.

[00:42:25] Speaker 06:
What's at risk here for veterans?

[00:42:33] Speaker 06:
Is there re-employment rights?

[00:42:37] Speaker 06:
That is what's being violated.

[00:42:41] Speaker 06:
And so that's why they have a provision.

[00:42:45] Speaker 06:
And that's why OPM says protection of rights when it's talking about 353.209.209.

[00:42:55] Speaker 06:
And those rights need to be protected.

[00:43:02] Speaker 06:
And the statute and the regs and the legislative history

[00:43:06] Speaker 06:
recognize that when people come back from leave, they need to have a period of time to adapt to the service, et cetera, and they want to protect all.

[00:43:18] Speaker 06:
All of this is well thought out by you, Sarah, and it's being ignored in the arguments that are being made by the agency.

[00:43:30] Speaker 07:
We need to think about it.

[00:43:32] Speaker 07:
So thank you, Mr. Magri, and thank you, counsel.

[00:43:34] Speaker 07:
The case is taken under submission.