[00:00:29] Speaker 01:
I'm sorry, take your time.

[00:00:33] Speaker 00:
That was almost a tort.

[00:00:35] Speaker 05:
I remember that from law school.

[00:00:50] Speaker 01:
I am the other hand, John.

[00:00:51] Speaker 01:
I've tried as hard as I could to forget torts from law school.

[00:00:57] Speaker 00:
A civil wrong not founded in contract.

[00:01:00] Speaker 00:
I remember that from the bar briefing.

[00:01:03] Speaker 00:
Okay.

[00:01:06] Speaker 03:
Mr. Carpenter.

[00:01:09] Speaker 00:
Mr. Harrington.

[00:01:10] Speaker 00:
Oh, Mr. Harrington.

[00:01:10] Speaker 00:
I'm sorry.

[00:01:12] Speaker 00:
I've got them out of order.

[00:01:14] Speaker 00:
Yeah.

[00:01:14] Speaker 00:
Thank you.

[00:01:15] Speaker 00:
You're not reserving any time at all?

[00:01:19] Speaker 00:
Correct.

[00:01:19] Speaker 00:
Okay.

[00:01:23] Speaker 00:
You can proceed.

[00:01:24] Speaker 03:
May I please the court?

[00:01:25] Speaker 03:
The key question presented by Mr. Smith's petition is whether the Merit Systems Protection Board aired when it found that GSA produced clear and convincing evidence that it would have removed Mr. Smith absent his protected activity under the Whistleblower Protection Act.

[00:01:42] Speaker 03:
The board did find that he made at least one protected disclosure under the WPA and that that protected disclosure was a contributing factor to his removal.

[00:01:53] Speaker 00:
In the blue brief at 15, you argued that Mr. Smith's PIP, quote, did not establish any specific goals or deliverables.

[00:02:04] Speaker 00:
But the improvement plan discusses things like completing certain training courses and raising his communication skills.

[00:02:16] Speaker 00:
Are those not sufficiently specific?

[00:02:20] Speaker 03:
I think, Your Honor,

[00:02:22] Speaker 03:
He wasn't required to take specific courses.

[00:02:24] Speaker 03:
I think there was a general recommendation that he take some training.

[00:02:27] Speaker 03:
There was no specific requirement.

[00:02:29] Speaker 03:
And in terms of improving his communication, there was no measurable goal by which that could be determined.

[00:02:37] Speaker 03:
And I think we referenced that as an example of kind of the underlying animus that was going on at that time.

[00:02:46] Speaker 03:
But in terms of the board's finding that GSA had produced clear and convincing evidence,

[00:02:52] Speaker 03:
We argue that the board erred because it did not analyze, discuss or consider Mr. Smith's countervailing evidence and looking at the strength of the agency that did.

[00:03:05] Speaker 04:
Can I just ask you if, I guess, I think of your argument in the following way.

[00:03:11] Speaker 04:
If you look at what amounts to the single paragraph amounting to, of which two sentences address this question.

[00:03:19] Speaker 04:
The first is just a conclusory assertion that

[00:03:22] Speaker 04:
the agency would have taken this action even had there been no protective disclosure.

[00:03:28] Speaker 04:
And then the next sentence says, indeed, I find that the defiantly disrespectful misconduct described in charge one alone would have justified his removal.

[00:03:40] Speaker 04:
I take it that part of your point here is that going from that first sentence to the second sentence actually changes the legal standard agencies

[00:03:51] Speaker 04:
to refrain from taking many actions that they would be justified in taking.

[00:03:57] Speaker 04:
And that's not the question under 1221E2.

[00:04:00] Speaker 04:
The question is, would the agency have taken this had your client not engaged in the particular December 2015 83-page protected disclosure?

[00:04:12] Speaker 04:
And I think maybe you have asserted other protected disclosures as well.

[00:04:16] Speaker 04:
And that question is not

[00:04:20] Speaker 04:
analyzed at all by the A.J.

[00:04:22] Speaker 03:
I agree, your honor, and I think that's the fundamental issue that we've raised here.

[00:04:29] Speaker 03:
There's no discussion of any of the first two car factors that the board must discuss, and there has to be an in-depth review and full discussion of those various issues, particularly any motive to retaliate on the part of GSA management officials who are making these decisions.

[00:04:49] Speaker 02:
Following on to that question from Judge Toronto, do I correctly understand that if it were possible that you could avoid analysis of the car factors by just looking at whether the charge had been proven and whether there was nexus and whether Douglas factors were analyzed, then would there never be a whistleblower defense in these kinds of cases?

[00:05:14] Speaker 02:
I'm trying to figure out and wrap my head around exactly

[00:05:18] Speaker 02:
You know, why it is that these two sentences together show a lack of analysis or the wrong analysis.

[00:05:27] Speaker 03:
Well, certainly in a situation such as this where Mr. Smith has raised an affirmative defense under the WPA, those car factors must be applied.

[00:05:39] Speaker 03:
And the case law is clear on that.

[00:05:41] Speaker 03:
And there is its error on the part of the board to not apply those factors.

[00:05:47] Speaker 03:
And again, there was simply no discussion of Mr. Smith's countervailing evidence and weighing the strength of the agency's evidence.

[00:05:55] Speaker 03:
No discussion of or analysis of any motive to retaliate on the part of the management officials.

[00:06:01] Speaker 00:
If we find that the car factors are missing, do we send it, vacate in remand and send it back for them to redo it or reverse?

[00:06:13] Speaker 03:
We have asked that you reverse and vacate the

[00:06:17] Speaker 03:
the initial decision.

[00:06:21] Speaker 02:
How can we do that?

[00:06:26] Speaker 03:
Well, certainly the relief we're requesting.

[00:06:28] Speaker 03:
If you think that you cannot do that, then certainly we would ask it to be remanded for a full consideration of these car factors and the decision be made without the errors that thus far have tainted it.

[00:06:42] Speaker 03:
And back to the car factors, Your Honor.

[00:06:43] Speaker 03:
I just want to mention quickly the comparator evidence, which is the third car factor.

[00:06:47] Speaker 03:
The agency did not produce any comparator evidence.

[00:06:51] Speaker 04:
Did you?

[00:06:52] Speaker 04:
By comparator, you mean somebody else who was in a similar position having sent complaints to higher-ups outside the agency on matters that would constitute protected disclosures.

[00:07:07] Speaker 04:
Did you identify anybody else who was similarly situated in that respect?

[00:07:11] Speaker 03:
We did not, Your Honor.

[00:07:12] Speaker 04:
So it's, I mean, what was there to address that wasn't addressed?

[00:07:17] Speaker 04:
on that particular fact.

[00:07:19] Speaker 03:
Well, certainly there, again, the case law is clear that the agency bears the risk of there being no comparator evidence.

[00:07:27] Speaker 03:
And that absence of comparator evidence can in and of itself be fatal to an analysis of independent causation under the car factors.

[00:07:40] Speaker 04:
Can I ask you this question?

[00:07:44] Speaker 04:
In December 2014,

[00:07:46] Speaker 04:
and then reiterated, I think, May 6, 2015, there came a directive to Mr. Smith that didn't say, if you're going to communicate with higher-ups, show us what you're going to do, say, first so that we can at least tone it down or change the language or correct things that you may have gotten incorrect.

[00:08:15] Speaker 04:
It said,

[00:08:15] Speaker 04:
You need our approval.

[00:08:18] Speaker 04:
Do you view that as an order contrary to law, in particular contrary to the Whistleblower Protection Act?

[00:08:26] Speaker 03:
Yes, we do.

[00:08:28] Speaker 03:
In essence, it can be read to prevent him from making a protected disclosure without his supervisor prior approval.

[00:08:37] Speaker 03:
Certainly, if Mr. Smith wanted to make another protected disclosure outside of

[00:08:42] Speaker 03:
or even within his management chain, that directive required them to get a supervisor's approval before doing that.

[00:08:50] Speaker 04:
And I gather some of the theme in your brief is that, I don't know, what one might call annoyance or disapproval of that get approval order, including the you're not the boss of me kind of language that he used, may be connected to that.

[00:09:10] Speaker 03:
That's correct.

[00:09:11] Speaker 03:
And that's really the focus of our kind of argument throughout the brief about the lack of context and the lack of discussion of context in the board's decision.

[00:09:23] Speaker 03:
And this really also kind of highlights the board's failure to make any findings with regard to whether Mr. Smith made any prior protective disclosures.

[00:09:33] Speaker 03:
The board found that his December 2015 performance diagnostics report was a protective disclosure.

[00:09:39] Speaker 03:
he had alleged and produced testimony at the hearing that he'd made very numerous similar disclosures in the two or three years leading up to that particular report the same types of issues that he'd raised and it was really he argued it was those communications that led to the communication restriction initially since you're not reserving any time I want you to talk a little bit about the security

[00:10:09] Speaker 00:
because I think that's something the government is going to say.

[00:10:17] Speaker 00:
I'd like to discuss the context of it.

[00:10:19] Speaker 03:
Okay.

[00:10:21] Speaker 03:
Well, Your Honors, Mr. Smith is quadriplegic, and again, he was a 28-year GSA employee.

[00:10:30] Speaker 03:
He produced testimony really undisputed by the management officials that

[00:10:36] Speaker 03:
For a number of years he had not removed his PIV card or undocked his laptop when he would leave on a daily basis just because given his disability he lacked the dexterity to do that.

[00:10:51] Speaker 03:
And in that sense I think Mr. Smith is his own comparator.

[00:10:54] Speaker 03:
We didn't make this argument in the brief but I think it's a fair way to look at this.

[00:10:59] Speaker 03:
For a number of years this was not an issue.

[00:11:03] Speaker 03:
He did not have a formal accommodation.

[00:11:05] Speaker 03:
I think the board faulted him for not having requested a formal accommodation.

[00:11:10] Speaker 03:
But he had an effective accommodation for a number of years.

[00:11:14] Speaker 03:
And he testified that the management officials, Ms.

[00:11:17] Speaker 03:
Gladman, Mr. Nastassi, knew that he didn't undock his laptop and that he didn't remove his PIV card.

[00:11:24] Speaker 03:
And it hadn't been an issue until his protected activity.

[00:11:28] Speaker 03:
And then it became an issue.

[00:11:32] Speaker 03:
If anything, you know, highlights the board's, you know, its error in finding that the GSA had produced the clear and convincing evidence it needed to produce.

[00:11:44] Speaker 03:
But it's that same, I don't know if you, the more you want me to say on that security issue.

[00:11:49] Speaker 00:
No, not really.

[00:11:50] Speaker 03:
I just want... I don't think any real harm was, obviously it's an important policy and there is an exception for disabled employees under that particular policy.

[00:11:58] Speaker 03:
Mr. Smith had not gone through the formal process to have that policy applied to him, but de facto he had that accommodation for a number of years prior to his protected activity.

[00:12:11] Speaker 04:
Can I ask you about one of the other specifics, which I guess I don't know enough about the underlying details.

[00:12:18] Speaker 04:
One of the charges found against him was disobeying an order not to work on weekends?

[00:12:27] Speaker 03:
Correct, Your Honor.

[00:12:27] Speaker 04:
What kind of... Who orders somebody not to work on weekends?

[00:12:33] Speaker 04:
Perhaps somebody doesn't want to... Would your client have gotten more pay by doing work on the weekends?

[00:12:41] Speaker 04:
No.

[00:12:41] Speaker 04:
What's the basis for an order, don't work on weekends?

[00:12:45] Speaker 03:
As I understand it, and I'm sure agency counsel is more familiar with this than I am, government employees... It's like during the furlough shutdown.

[00:12:53] Speaker 03:
It's an ADA argument, I assume, and I... Well, as I understand it,

[00:12:56] Speaker 03:
Government employees are not supposed to work off the clock, period.

[00:13:00] Speaker 03:
Even if they want to donate their time, yeah.

[00:13:04] Speaker 02:
So it has nothing to do with overtime or accommodations, you think?

[00:13:09] Speaker 02:
No.

[00:13:09] Speaker 02:
Or building facilities or anything on the weekend.

[00:13:11] Speaker 03:
As I understand it, it's just a simple policy.

[00:13:14] Speaker 03:
You're not supposed to work off the clock, even if you want to donate your time.

[00:13:18] Speaker 02:
But I would just say... Was it a policy that applied to everybody?

[00:13:21] Speaker 03:
As I understand it, it did.

[00:13:23] Speaker 03:
But here again... I'm sorry.

[00:13:25] Speaker 04:
Again, context.

[00:13:28] Speaker 04:
I was in the Justice Department for a few years and we see, you know, Justice Department work.

[00:13:33] Speaker 04:
I bet they're working more than 40 hours a week.

[00:13:36] Speaker 04:
It can't be that they are forbidden by statute to work off the clock.

[00:13:41] Speaker 03:
Well, I don't want to misstate what the statute says because I think I understand it, but I could be wrong.

[00:13:47] Speaker 03:
I thought it was... Well, maybe the government can... But I think I agree with your broader point, Your Honor, which is that

[00:13:53] Speaker 03:
like the PIV card, like the laptop.

[00:13:56] Speaker 03:
Mr. Smith said, you know, he had often worked on the weekends in the past.

[00:14:00] Speaker 03:
It wasn't that unusual.

[00:14:01] Speaker 03:
And here he explained that, you know, he had put together a report.

[00:14:06] Speaker 03:
He was waiting for one little piece of information.

[00:14:09] Speaker 03:
He got this piece of information over the weekend, typed out a concluding sentence on his report and sent out the email.

[00:14:18] Speaker 03:
But again, this weekend work had not been an issue prior to his protected activity and it only became an issue when the agency was looking to remove him and we argue, as the board found, Mr. Smith's protecting activity was certainly a contributing factor to that decision.

[00:14:39] Speaker 03:
But back to the communication restriction.

[00:14:42] Speaker 03:
The other thing I wanted to highlight in terms of the context of that is

[00:14:46] Speaker 03:
Management issued this communication restriction to Mr. Smith, said he couldn't communicate without their approval.

[00:14:53] Speaker 03:
At the time, he already had grievances related to what we argued were previous protected disclosures.

[00:15:01] Speaker 03:
To resolve those pending grievances, GSA issued him a new position description that said he gave him, made him a senior financial advisor, gave him more independence,

[00:15:16] Speaker 03:
said that he would act under administrative supervision and that he could communicate widely throughout the GSA outside of the Office of Chief Financial Officer in which he was housed.

[00:15:29] Speaker 03:
And it was in the context of his new position description and how Mr. Smith interpreted it and the authority it gave him that he was having these contentious communications that underlie charges, charge one and the five specifications under charge one.

[00:15:45] Speaker 03:
And again, the board did not discuss really the context of those communications in light of communication restrictions, the position description that gave Mr. Smith the broader authority.

[00:15:59] Speaker 03:
And again, that is the context and the board simply did not discuss it, let alone give it the in-depth review that it was required to do.

[00:16:08] Speaker 03:
I see that I have 10 seconds left, so unless you have any further questions, I'll leave it at that.

[00:16:14] Speaker 03:
Thank you, Your Honor.

[00:16:36] Speaker 01:
May it please the Court.

[00:16:37] Speaker 01:
The Government respectfully requests that you affirm the MSPB's decision to stand.

[00:16:40] Speaker 00:
I read brief at four.

[00:16:42] Speaker 00:
You state that

[00:16:43] Speaker 00:
Starting in 2010, Mr. Smith's supervisors, colleagues and other GSA officials with whom he worked, recognized that he had challenges with effective and accurate communication and the ability to follow supervisory instruction.

[00:17:01] Speaker 00:
And that as a result of his actions, you took steps to monitor his actions, that is the agency.

[00:17:07] Speaker 00:
Isn't it an amazing coincidence that they recognized those challenges when he began whistle blowing?

[00:17:13] Speaker 01:
It might or might not be.

[00:17:16] Speaker 01:
The record is largely absent of his pre-2012 statements, but I think a function of it was just as he started to advance up and started to take on a more senior role.

[00:17:28] Speaker 01:
I mean, this man had advanced through 28 years and had come up from a lower level to a much higher level.

[00:17:32] Speaker 01:
Taking on more senior roles, they noticed that his communication just was not up to the higher standards that he required.

[00:17:40] Speaker 00:
In the blue brief at 14.

[00:17:42] Speaker 00:
Mr. Smith argues that no one at GSA ever reached out to him to attempt to demonstrate that his dead or his conclusions in his performance diagnostic reports were incorrect or inaccurate.

[00:17:56] Speaker 01:
Were they?

[00:18:00] Speaker 01:
There are certainly emails on the record indicating that I don't understand how he arrived at these figures.

[00:18:05] Speaker 01:
They seem to be inaccurate.

[00:18:06] Speaker 01:
This does not make sense.

[00:18:07] Speaker 01:
It was certainly his supervisors

[00:18:10] Speaker 01:
Certainly could not follow.

[00:18:12] Speaker 01:
There were efforts to make actually to, in many of Mr. Smith's communications, to follow through and try to implement his solutions to Russia.

[00:18:18] Speaker 01:
They couldn't understand it.

[00:18:19] Speaker 01:
They couldn't match his figures.

[00:18:21] Speaker 01:
It didn't make sense.

[00:18:22] Speaker 01:
That certainly is not borne out by the supervisor.

[00:18:27] Speaker 02:
And certainly there are emails on the record coming back after Mr. Smith saying... Just to clarify, those are emails that were sent to Mr. Smith.

[00:18:34] Speaker 02:
Yes, responding to... Because I saw the record included somewhere.

[00:18:36] Speaker 02:
Maybe he wasn't copied and people were saying something about it, but I just

[00:18:40] Speaker 02:
I wanted to confirm that you're referring to emails that were sent to him.

[00:18:44] Speaker 01:
I believe at least some of those emails were sent to Mr. Smith, and certainly they were conveyed to his supervisors, and I believe that those issues were discussed.

[00:18:53] Speaker 01:
The accuracy of his communication was certainly discussed in reference to his performance reviews, that one of the issues was with the accuracy of his communication.

[00:19:00] Speaker 01:
So certainly, at the very least, even if not, I believe some of those emails were sent to Mr.

[00:19:06] Speaker 01:
And at the very least, even if they weren't, certainly the accuracy of his communication was a topic in his performance reviews.

[00:19:12] Speaker 00:
In the RedBerry, at 29, you say, to sustain his removal, GSA must only prove that its IT policy existed and that he failed to follow it.

[00:19:25] Speaker 00:
What about his claim of disability and an effective accommodation, that for the past five years he had been permitted to

[00:19:36] Speaker 00:
not remove the card.

[00:19:38] Speaker 01:
Well, certainly the failure to follow, he wouldn't have failed to follow policy if he had had that accommodation.

[00:19:44] Speaker 01:
The OT policy contained an exception for people with disabilities who were unable to... He's a quadriplegic, right?

[00:19:49] Speaker 00:
Correct, but he also never sought accommodation, like what, so he found that... Does the GSA dispute that his supervisors knew for that period of time that he was not removing the card?

[00:20:01] Speaker 01:
I am not sure of that, Your Honor, but certainly there's no direct evidence the supervisors can... You're sure, you must be sure that it disputes or it doesn't dispute.

[00:20:12] Speaker 01:
I certainly do not know if for that entire period of time that the supervisors, whether they knew whether he was removing or not removing his fifth card... So you're conceding his argument then?

[00:20:22] Speaker 01:
I'm conceding, what I'm saying, Your Honor, is that he certainly never sought exception.

[00:20:27] Speaker 01:
And he certainly actually never questioned his supervisors as to whether or not they condoned it.

[00:20:32] Speaker 01:
Whether they knew that he challenged with dexterity, they certainly knew that he had challenges with dexterity and he certainly knew that he would have difficulty, but there's no indication in the record that they knew he would be unable to comply with the PIV card requirement or overtly condone it.

[00:20:50] Speaker 04:
But on the record, does the record say anything about, he said, I've been leaving this in the PIV card

[00:20:57] Speaker 04:
here and the laptop docked for the last five years.

[00:21:02] Speaker 04:
And my supervisors knew.

[00:21:05] Speaker 04:
Does he say that?

[00:21:06] Speaker 04:
I thought he did say that.

[00:21:07] Speaker 01:
He testified to that effect.

[00:21:09] Speaker 04:
But did you all have contrary evidence that we had no idea?

[00:21:14] Speaker 04:
Or yes, we knew, but?

[00:21:18] Speaker 01:
As far as I am aware, there is no specific evidence with regards to the laptop.

[00:21:23] Speaker 01:
But he did not actually question the supervisor as whether they did not question any of the supervisors as whether they condoned it.

[00:21:31] Speaker 01:
None of the supervisors actually indicated that they condoned it and they knew of that in their testimony.

[00:21:35] Speaker 01:
There is no evidence.

[00:21:36] Speaker 02:
But if they waited for five years and did nothing and knew of it, why isn't that de facto approval?

[00:21:47] Speaker 01:
Well, certainly what the supervisors who

[00:21:52] Speaker 01:
The supervisor that chose to discipline him for it did discipline him shortly after he started working underneath that supervisor.

[00:22:02] Speaker 01:
But even if it was certainly the administrative judge who heard the testimony... That doesn't necessarily cut in your favor, you know.

[00:22:12] Speaker 01:
I'm not saying it does, Your Honor, per se, but what I'm saying is the

[00:22:21] Speaker 01:
As I apologize, what I've been informed is that the PIV card issue did not become an issue until it showed up on a GSA IT report after it had been left in its computer for multiple weeks.

[00:22:35] Speaker 01:
And that is as it became an issue raised from IT security perspective to the supervisors.

[00:22:40] Speaker 01:
That's when they started having problems with it.

[00:22:42] Speaker 00:
It still doesn't catch in your favor as far as I'm concerned.

[00:22:47] Speaker 00:
The record reveals that Mr.

[00:22:49] Speaker 00:
Smith's position description changed from program expert to financial management analyst.

[00:22:58] Speaker 00:
He says, and that was in response to a grievance, correct?

[00:23:03] Speaker 01:
Not quite, Your Honor.

[00:23:05] Speaker 00:
OK.

[00:23:05] Speaker 01:
The position description was changed in response to a reorganization of the Office of the Chief Financial Officer.

[00:23:11] Speaker 01:
The position description was then publicized throughout GSA in response to the EEO, in response to settle an EEO

[00:23:19] Speaker 01:
The position description actually came out before that.

[00:23:25] Speaker 01:
This position description came out in March and then it became part of the EEO settlement in August.

[00:23:33] Speaker 01:
So the position description came out in... In 2015?

[00:23:37] Speaker 01:
2015.

[00:23:38] Speaker 01:
I apologize for not giving you your honor.

[00:23:40] Speaker 00:
Regarding the PIP goals, many of them seem difficult to measure such as

[00:23:48] Speaker 00:
Establish and nurture professional relationships with customers and co-workers.

[00:23:54] Speaker 00:
Improve collaboration with team members.

[00:23:56] Speaker 00:
How are they supposed to be measured?

[00:24:01] Speaker 01:
Well, certainly he was not actually removed for failing this PIP.

[00:24:04] Speaker 01:
He was removed for the misconduct of the deliberate and insubordinate disrespectful conduct to his supervisors.

[00:24:09] Speaker 01:
But how would the PIP be measured?

[00:24:11] Speaker 01:
I've seen certainly what was communicated to Mr. Smith and communicated throughout the record is that

[00:24:16] Speaker 01:
communications that were disparaging, disrespectful of other people would not be tolerated.

[00:24:22] Speaker 01:
And certainly his statements to Mr. Augustus, his statements, emails, criticizing management's knowledge of the programs that they were managing, criticizing, supervisors saying, you don't understand your job, the charges laid out in the specifications showed an unwillingness to respond to people in a professional manner.

[00:24:45] Speaker 01:
And I think that that

[00:24:46] Speaker 01:
would be what they were looking for.

[00:24:48] Speaker 01:
I mean, they specifically laid out what level three communication was and one thing within his position description was one thing was expected was to communicate in a civil and professional manner.

[00:24:59] Speaker 01:
And I think that that largely would be what they would be looking for is communication to take a tone that was not disparaging of others, to take a tone that was to be professional in the sense that it was proofread.

[00:25:10] Speaker 01:
it was it made sense it was logical it was clear it was in a way that was understandable and not frustrating to the people who are reading it and that was car car factors there there are three car factors right yes your honor are uh two of them not just discussed in the mspb decision um two of them are not analyzed and not not well

[00:25:35] Speaker 01:
The third factor of similarly situated comparators drops out because there is no evidence of any similarly situated comparator.

[00:25:42] Speaker 01:
So that under Whitmore is allowed to drop out just because there is no comparator to make an analysis of.

[00:25:53] Speaker 02:
Does it drop out or does the law say that when the government is unable to provide any evidence there could be an inference there?

[00:25:59] Speaker 01:
No, Your Honor.

[00:26:00] Speaker 01:
What the standard is is that the standard is

[00:26:03] Speaker 01:
Can they prove by clearly convincing the evidence that they would have taken the action absent the protective authority?

[00:26:08] Speaker 02:
I understand.

[00:26:09] Speaker 02:
I just meant for car factor three.

[00:26:11] Speaker 02:
There is some case law that I think suggests that under some circumstances when the government doesn't have any evidence that it could just be something that's taken into account that there's no evidence.

[00:26:22] Speaker 01:
That's all I'm asking about is car factor three.

[00:26:24] Speaker 01:
Yes, it can be taken into account.

[00:26:25] Speaker 01:
You don't have to produce evidence that independently carry the burden on all three car factors.

[00:26:29] Speaker 01:
It's done in the aggregate.

[00:26:31] Speaker 01:
You carry the burden overall to meet the questions.

[00:26:33] Speaker 01:
The car factors are merely pertinent considerations.

[00:26:36] Speaker 01:
And certainly, if there is no evidence of similarly situated comparators, certainly the evidence of similarly situated comparators could go to bolster the other car factors, and the lack of evidence of similarly situated comparators could certainly go to undermine the car factors.

[00:26:52] Speaker 01:
It's merely just weighed in the aggregate.

[00:26:53] Speaker 01:
But in and of itself, the failure to produce a similarly situated comparator is not fatal.

[00:26:59] Speaker 01:
Certainly one is analyzed in great detail as the severity of the agency's evidence and the severity of misconduct.

[00:27:12] Speaker 01:
Likewise, the agency's motive to retaliate and the rationale for the agency's decision to remove Mr. Smith is certainly analyzed.

[00:27:19] Speaker 01:
It was Mr. Smith testified in great detail about why he believed he was removed.

[00:27:25] Speaker 04:
Not analyzed by the A.J.

[00:27:26] Speaker 04:
Where is it?

[00:27:27] Speaker 04:
Even the first factor is just seeing my first 25 pages of discussion, in particular about the charge one.

[00:27:38] Speaker 01:
It is permissible to do that, Your Honour, you do not have to reanalyze.

[00:27:43] Speaker 04:
That's what you mean by that first factor.

[00:27:46] Speaker 01:
The first factor is analyzed in the earlier penalty determination.

[00:27:49] Speaker 01:
It is permissible to rely back on that without restating

[00:27:52] Speaker 01:
everything that you stated in the first part of the decision.

[00:27:55] Speaker 04:
Right.

[00:27:56] Speaker 04:
And then this paragraph ends with, and therefore I find that the government would have done this anyway.

[00:28:02] Speaker 01:
Correct, Your Honor.

[00:28:03] Speaker 04:
The paragraph does end, but it does not mean that that... You have four or five pages of discussion near the end of your red brief that try to do what surely you think it would have been nice if the AJ did.

[00:28:16] Speaker 01:
Well, certainly the A.J.

[00:28:17] Speaker 01:
could have said, had provided more detail in that portion of decision, and certainly we do allude to that in our brief, and it certainly would have been nice had there been a little bit more detail there, but it does not mean it was not considered.

[00:28:29] Speaker 04:
As I said, Mr. Smith testified... Right, but I mean, we don't stop at simply saying, do we know it was not... That it was considered... Well, it's implicit in the decision, Your Honor.

[00:28:40] Speaker 04:
Well, except that there were really two sentences here, and one of them

[00:28:44] Speaker 04:
states the conclusion, and then the other changes the standard into something that is legally different.

[00:28:50] Speaker 01:
Well, it does not, Your Honor, it does not change the standard.

[00:28:52] Speaker 04:
The fact that action would be justified does not mean it would be taken.

[00:28:58] Speaker 01:
Right, but he did, the AJ did hear testimony from the deciding official and the proposing official as to their rationale for taking this action, and he credited that testimony, credited their testimony, found them credible in several instances,

[00:29:09] Speaker 01:
and noted that there's no indication that they lied, and they made it very clear in their testimony that their reasons for taking this action... The problem is that there's no analysis of that.

[00:29:21] Speaker 02:
Instead, there's just a conclusion.

[00:29:23] Speaker 02:
The government proved its case.

[00:29:25] Speaker 02:
Indeed, I find that they proved charge one alone, and that would have justified removal.

[00:29:32] Speaker 02:
There's no analysis here of the car factors at all.

[00:29:39] Speaker 02:
How do we know that what you're saying is what they concluded?

[00:29:41] Speaker 02:
We just don't know.

[00:29:44] Speaker 02:
Instead, it seems as if the test applied is incorrect, because the car factors were not applied.

[00:29:48] Speaker 02:
Instead, what was said was, the proof of charge one alone justifies the conduct here.

[00:29:56] Speaker 01:
The car factors were certainly analyzed, and he did take... Where, though?

[00:30:01] Speaker 01:
He did take testimony of... But we're in their opinion.

[00:30:05] Speaker 01:
It's implicit, Your Honor, in the opinion.

[00:30:10] Speaker 00:
What's implicit, it seems to me, is that the GSA's position is, rather than the squeaky wheel gets the grease, that the squeaky wheel, in this case, gets the ass.

[00:30:23] Speaker 01:
No, Your Honor.

[00:30:25] Speaker 01:
The GSA explained very clearly,

[00:30:30] Speaker 00:
He made his superiors look bad by revealing information.

[00:30:33] Speaker 01:
No, he did not actually.

[00:30:34] Speaker 01:
His information was about the management of the programs in which he administered.

[00:30:39] Speaker 01:
So it was outside of his chain of command.

[00:30:41] Speaker 01:
What his supervisors had a problem with, and this is very clearly testified to by the deciding official on page 226, and I will confirm that.

[00:30:53] Speaker 01:
is that their problem was the fact not the fact that he was disclosing what he believed to be was sublime was disclosing it as if it was the official position of his office using words like I using words using words like we instead of I saying that this is the official position of the office which had never been vetted it was these submissives were overly wordy they had intense amount of typos but how does that all of that makes you know a lot of sense it also makes a lot of sense that in a

[00:31:22] Speaker 04:
hierarchical organization in which ultimately the president has control of everything that people working for higher ups have to be substantially respectful and civil and polite and substantive and not too ordinary and not get in the way of things.

[00:31:39] Speaker 04:
You can't run the government any other way.

[00:31:43] Speaker 04:
Nevertheless, the question here

[00:31:47] Speaker 04:
is on the analysis of the whistleblower claim, whether a series of protected disclosures, only one was found but others were alleged, were such that considering the level of seriousness about which one might have very different views of at least some of the charges that were sustained,

[00:32:15] Speaker 04:
whether removal would have taken place, not whether it was justifiable on those charges, whether it would have taken place had he not engaged in these protected disclosures.

[00:32:32] Speaker 04:
And part of that seems to me to be that your argument about the miscommunications, the tone, the inaccuracies,

[00:32:43] Speaker 04:
I don't see how that justifies the December and May, December 2014 order.

[00:32:48] Speaker 04:
You must get approval from us before you send communications outside the office.

[00:32:55] Speaker 01:
As was explained to Mr. Smith and as the Administrative Judge credit the testimony of the deciding official, the proposing official, the supervisors explaining that restriction.

[00:33:04] Speaker 01:
It was not intended, it was intended at his official communications only to the extent he was producing

[00:33:10] Speaker 01:
documents and reports that intended to present themselves at the official position of the Office of the Chief Financial Officer, they had to be approved.

[00:33:18] Speaker 01:
They testified credibly that the administrative judge credited it, that it was not about restricting his communication.

[00:33:25] Speaker 04:
Do we have the, I guess, the December 2014 email and the May 6th email or something just said, by the way, notwithstanding your new position description, what we ordered back in December still stands.

[00:33:38] Speaker 04:
So where is the official statement to him of that you must get approval?

[00:33:45] Speaker 01:
Well, the original communication description is that the communication restriction is at 1949.

[00:33:53] Speaker 01:
1949?

[00:33:53] Speaker 01:
1949, Your Honor.

[00:34:21] Speaker 04:
So this is near the third paragraph above the thanks.

[00:34:28] Speaker 04:
As a result of these concerns, effective immediately any communication that you wish to transmit verbally or electronically to managers outside of the OCFL must be approved by me before doing so.

[00:34:43] Speaker 01:
Right, but that language does not contain the limitation that

[00:35:10] Speaker 04:
you were indicating might have been intended which is official communications from you speaking for the office but what you do in your own voice speaking for yourself is

[00:35:24] Speaker 04:
is outside this.

[00:35:26] Speaker 01:
This says any communication.

[00:35:31] Speaker 01:
How did he understand?

[00:35:34] Speaker 01:
I mean, this is really broad, any communication.

[00:35:42] Speaker 01:
I certainly cannot

[00:35:47] Speaker 01:
speak to Mr. Smith's understanding.

[00:35:50] Speaker 01:
I can speak to what his supervisors testify that it was that they was understood, was discussed, and what was conveyed to him.

[00:35:56] Speaker 01:
And that administrative judge who heard that testimony did credit their explanation for it, which was that it was, credit their testimony, which was that it was directed solely at his official communications.

[00:36:05] Speaker 01:
It was not intended to prohibit him from whistleblowing.

[00:36:08] Speaker 01:
He was free to whistleblow, and they actually tried to implement many of the suggestions that he put forward.

[00:36:12] Speaker 01:
They just couldn't understand them.

[00:36:14] Speaker 01:
They were not intended to prohibit his whistle-blowing.

[00:36:16] Speaker 01:
They were just intended to ensure that statements that included words like I and we were represented as the official position of his office met the standards that we would expect of all employees at an organization.

[00:36:28] Speaker 04:
Can I switch topic for a second?

[00:36:31] Speaker 04:
Yes, sure.

[00:36:32] Speaker 04:
Can you explain what's going on with the don't work on weekends order?

[00:36:39] Speaker 01:
As what I have been informed, as Mr. Harrington noted, is kind of a policy about ensuring conservation of government resources, ensuring that people... Wait, wait, slow down.

[00:36:52] Speaker 01:
As far as I understand, it was just a uniform policy against ensuring conservation of government resources and making sure that people weren't performing too much work off the clock.

[00:37:01] Speaker 01:
Did it apply to everybody?

[00:37:04] Speaker 01:
As far as I am aware... Where's that published?

[00:37:09] Speaker 01:
I do not know, Your Honor.

[00:37:10] Speaker 04:
I'm sorry.

[00:37:10] Speaker 04:
What's wrong with work off the clock?

[00:37:12] Speaker 04:
And the answer may be it's illegal or it may be it costs us more money, but why?

[00:37:16] Speaker 01:
I certainly cannot speak to the specifics of Mr. Smith's position, but certainly in many cases under the FLSA, you cannot work off the clock without being paid.

[00:37:28] Speaker 01:
You have to be compensated for it.

[00:37:30] Speaker 01:
Certainly.

[00:37:31] Speaker 04:
Was he in a position as to which that would be true?

[00:37:33] Speaker 01:
I do not know, Your Honor.

[00:37:35] Speaker 01:
I believe it was about

[00:37:38] Speaker 01:
ensuring that management was aware of what was being formed and ensuring that resources were conserved.

[00:37:47] Speaker 01:
But that is absent from the record and I do not have an answer for you as to the specifics of that.

[00:37:52] Speaker 02:
Am I correct in understanding that the only instance of working on the weekend for which he was reprimanded and charged was just an instance where he says he

[00:38:04] Speaker 02:
received a communication and then forwarded it to his supervisors, where he explained that there was minimal work?

[00:38:10] Speaker 02:
Were there additional instances in which he was charged with working on weekends?

[00:38:18] Speaker 01:
In the record, the only charge is of that one instance, and that's the only one that was documented and discussed in the record.

[00:38:25] Speaker 01:
I cannot speak to whether or not there are other instances,

[00:38:28] Speaker 01:
according to the charge itself.

[00:38:30] Speaker 01:
It notes that he was repeatedly advised not to work on the weekends, and it might have been the one charge that had come up at that point.

[00:38:41] Speaker 01:
Did you have any comparators on that?

[00:38:42] Speaker 01:
We did not, Your Honor.

[00:38:47] Speaker 01:
I see I have exceeded my time, and for the reasons set forth in our brief, we respectfully request that you affirm the decision of the SPB.

[00:38:54] Speaker 00:
Thank you.

[00:38:54] Speaker 00:
The matter will stand submitted.