[00:00:00] Speaker 00:
Mr. Carter, please proceed.

[00:00:08] Speaker 03:
Good morning, Your Honors.

[00:00:08] Speaker 03:
May it please the court, Adam Carter of the Employment Law Group on behalf of Army Staff Sergeant Ringo Chan.

[00:00:16] Speaker 03:
In this USERRA case, the administrative judge never shifted the burden to the agency under this court's precedent in Xi'an.

[00:00:25] Speaker 03:
This then required Chan, at the prima facie stage,

[00:00:29] Speaker 03:
to rebut the agency's reasons for disciplining and removing Chan.

[00:00:34] Speaker 03:
This is not how USERA is supposed to work.

[00:00:37] Speaker 03:
The prima facie burden is supposed to be light, and then the burden of proof is supposed to be on the agency.

[00:00:45] Speaker 03:
Had the burden of proof been shifted to the agency properly, the agency would have had to prove what it is.

[00:00:53] Speaker 00:
I'm having a hard time understanding your burden-shifting argument.

[00:00:59] Speaker 00:
You cite to a number, my recollection is to a number of different kind of genres, discrimination, McDonald's, et cetera.

[00:01:09] Speaker 00:
So is it your view that she had, what was her burden in the first instance in your view?

[00:01:15] Speaker 03:
A very light prima facie burden to show that her military service was

[00:01:23] Speaker 03:
motivated the action, and again, there's no question.

[00:01:27] Speaker 03:
Okay, so she has the burden to show that it was a substantial and motivating factor, right?

[00:01:32] Speaker 00:
Right, and that's a light burden.

[00:01:36] Speaker 03:
Yes, Your Honor, and that's a light burden because it's just any, if it was anything at all.

[00:01:44] Speaker 03:
It's even lighter than, for example, Judge Gorsuch's opinion this summer in Bostock explaining that

[00:01:53] Speaker 03:
that butt four causation thought to be higher than motivating factor is the straw that broke the camel's back, presupposes a lot of other straw.

[00:02:03] Speaker 03:
And the point here is that- I don't understand her.

[00:02:05] Speaker 00:
You've got to be a little more specific with me because it's just, you say it's very light, it's almost anything.

[00:02:13] Speaker 00:
She has to show, I mean it's substantial evidence of you here and it's whether or not she shows

[00:02:21] Speaker 00:
that it was a substantial or motivating factor.

[00:02:24] Speaker 00:
So tell me precisely what she had to show in the first instance, what her burden was.

[00:02:30] Speaker 03:
Yeah, all she had to show was that her, that if the agency was answering truthfully, it would say that her military service was a factor.

[00:02:40] Speaker 03:
And we have a lot of evidence here.

[00:02:42] Speaker 03:
We have a pattern of close temporal proximity, which in most courts, that's enough.

[00:02:49] Speaker 03:
You've got the

[00:02:50] Speaker 03:
taking of the leave, and then as soon as she comes back, there is a write-up.

[00:03:00] Speaker 03:
As soon as she takes the next, as soon as she complains about the email that went out about how she took the charging party to a certain room, and she... Counselor, there's no doubt that she alleged these different incidents, but

[00:03:17] Speaker 01:
But that's not the question.

[00:03:18] Speaker 01:
The question is whether she has established that, um, her military service was a motivating factor.

[00:03:26] Speaker 01:
I mean, you've got to show that and you keep arguing that all she has to do is make out a light prime official case.

[00:03:34] Speaker 01:
I, I, uh, I agree with judge, uh, judge pros, except that I, I want you to get even a little bit more specific.

[00:03:41] Speaker 01:
What do you mean by light that she doesn't have to prove this?

[00:03:45] Speaker 03:
Your Honor, by analogy, for example, let's say this is a race case or something.

[00:03:53] Speaker 01:
Doesn't she have to prove that her military status or service is a motivating factor?

[00:04:02] Speaker 01:
Doesn't she have to show that, establish that?

[00:04:04] Speaker 03:
Yes, Your Honor.

[00:04:05] Speaker 03:
And the question before this court is how heavy is that burden?

[00:04:09] Speaker 03:
It shouldn't be heavy at all.

[00:04:11] Speaker 01:
And in this case... Is that really the question that you're appealing?

[00:04:14] Speaker 03:
How heavy is that burden?

[00:04:17] Speaker 03:
Well, no.

[00:04:17] Speaker 03:
I'm appealing that the burden should have shifted.

[00:04:21] Speaker 03:
Because it is a light burden, the agency should be the one that should have to prove what it would have done had Chan not been in the military.

[00:04:34] Speaker 03:
And there's nothing in this record, for example, about how many investigators in the San Diego office

[00:04:39] Speaker 03:
have been given a written disciplinary letter for working 15 minutes of overtime as an example.

[00:04:46] Speaker 03:
Had the agency been forced to bear its burden, the reason why USERA is set up this way is so that we don't disadvantage our men and women in uniform who are of necessity going to be bothering their civilian employers with

[00:05:06] Speaker 03:
the fact that they are taking off for military leave.

[00:05:10] Speaker 03:
This is going to get under the skin of civilian employers.

[00:05:14] Speaker 03:
It naturally does.

[00:05:15] Speaker 01:
Counselor, you have to show by a preponderance of evidence that the military service was at least a substantial or motivating factor in the adverse employment action.

[00:05:27] Speaker 01:
And unless you show that, you don't get into these other areas that you're talking about.

[00:05:32] Speaker 01:
But is this case really about whether the wrong legal standard was applied?

[00:05:38] Speaker 01:
Or is it about whether or not there's a failure to establish by preponderance evidence the substantial motivating factor in an adverse employment accident?

[00:05:49] Speaker 03:
Your Honor, if I could encourage you to read this court's opinion in McMillan.

[00:05:53] Speaker 03:
The last time I was arguing before this court was in McMillan.

[00:05:57] Speaker 03:
And these facts are even stronger

[00:06:00] Speaker 03:
in favor of Sergeant Chan than they were in favor of Colonel McMillan.

[00:06:05] Speaker 03:
In McMillan's case, he had one testy email with his employer.

[00:06:11] Speaker 03:
He comes back from his military service, he gets written up for that, and then months later he gets his tour renewed.

[00:06:17] Speaker 03:
And this court held, not only that the agent, you know, didn't just simply remand back and let the agency prove, actually awarded

[00:06:28] Speaker 03:
awarded McMillan the result and required the AJ below to establish a remedy.

[00:06:36] Speaker 03:
The point being that these facts, this temporal proximity on this record is so strong in comparison to what we had in McMillan that it is clear that Chan has borne this initial light burden on prima facie.

[00:06:57] Speaker 03:
Let me just also say

[00:06:58] Speaker 03:
how we would do it in a run-of-the-mill discrimination case of race or age discrimination.

[00:07:07] Speaker 00:
The prima facie case is, you know... Well, let me, before you spend a lot of time on that, let me just ask you.

[00:07:12] Speaker 00:
I mean, she-in is she-in, and we all agree that she-in is the case.

[00:07:18] Speaker 00:
Is there anything in our case law that suggests or compels that we use a different rubric, like the McDonald-Douglas or the kinds of

[00:07:28] Speaker 00:
you know, analyses that are applied in discrimination law here.

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

[00:07:33] Speaker 04:
We have a different statute.

[00:07:34] Speaker 00:
We have a different case law.

[00:07:37] Speaker 00:
So why are you telling us that the board erred here?

[00:07:40] Speaker 00:
Because McDonnell Douglas was applied.

[00:07:43] Speaker 03:
No, Your Honor.

[00:07:44] Speaker 03:
I'm sorry, Your Honor.

[00:07:46] Speaker 03:
Let me be clear.

[00:07:47] Speaker 03:
Sheehan controls.

[00:07:49] Speaker 03:
Sheehan controls.

[00:07:50] Speaker 03:
I am just now saying by analogy, if the point and the point of my of my long string site on

[00:07:57] Speaker 03:
light prima facie burden in other anti-discrimination statutes is to just simply analogize to that.

[00:08:06] Speaker 03:
Why should USERRA, which the legislative history makes clear, was designed to protect our men and women in uniform and to make it clear?

[00:08:17] Speaker 03:
This should be even more clear than in an age discrimination case or a race discrimination case.

[00:08:23] Speaker 03:
That's my point.

[00:08:25] Speaker 03:
And I'm merely making the point that

[00:08:27] Speaker 03:
When you have a light prima facie burden, then Chan gets over that burden.

[00:08:33] Speaker 03:
The administrative judge made an error by not shifting the burden to the agency for it to prove that Chan's military service had nothing to do with the decision.

[00:08:48] Speaker 03:
Let me also say that this is a good point to make, again, with respect to investigations.

[00:08:58] Speaker 03:
The EEOC is an investigative agency that, for example, would investigate General Motors in a race case.

[00:09:06] Speaker 03:
Well, if General Motors did no investigation of its own with respect to a race complaint, that would be evidence of discrimination here.

[00:09:18] Speaker 03:
the EEOC is the employer.

[00:09:21] Speaker 03:
And the EEOC cannot simply sit back and say, well, DOL vets investigates this.

[00:09:27] Speaker 03:
We don't have to investigate it.

[00:09:28] Speaker 03:
No, no, no.

[00:09:29] Speaker 03:
As employer, you do.

[00:09:32] Speaker 03:
You are obligated to do that.

[00:09:34] Speaker 03:
Otherwise, we can draw the inference that you don't care about discriminating against our men and women in uniform.

[00:09:41] Speaker 03:
And so that's a very, very significant

[00:09:44] Speaker 03:
Fact here, to Judge Reyna's point, that there's this sustained pattern of temporal proximity.

[00:09:51] Speaker 03:
There's no investigation by the EEOC as employer.

[00:09:55] Speaker 03:
And it's very clear, Your Honor, that from the get-go, as soon as she gets there and goes away on her military duty, they treat it like she's off on vacation.

[00:10:09] Speaker 03:
And when she comes back, they say, you've got to make up shifts.

[00:10:12] Speaker 01:
It seems to me you're making a different argument than what you sort of start out in your brief.

[00:10:23] Speaker 01:
Your argument in the brief and what I thought was before us was that the agency applied the wrong legal standard here.

[00:10:31] Speaker 01:
That's right.

[00:10:31] Speaker 01:
Well, what you're arguing now is the application of a standard to the facts or you're asking us to reweigh the factual findings that were made.

[00:10:43] Speaker 01:
Get back to your argument that the wrong legal standard was applied, and in doing so, explain what you mean by light.

[00:10:51] Speaker 01:
A light prima facie case.

[00:10:54] Speaker 01:
Where in the rigs or sets do we find that standard, a light standard?

[00:11:01] Speaker 03:
I notice I'm out of time.

[00:11:02] Speaker 03:
Should I answer now?

[00:11:03] Speaker 03:
Let me just take a minute to do that.

[00:11:05] Speaker 03:
Please respond to the question.

[00:11:07] Speaker 03:
Yes, ma'am.

[00:11:09] Speaker 03:
Judge Raina, the

[00:11:12] Speaker 03:
There aren't any cases that say that the prima facie in USERRA, that the prima facie case is supposed to be light.

[00:11:22] Speaker 03:
I am arguing that that is the case when you look at all of the other anti-discrimination statutes.

[00:11:31] Speaker 03:
And when you look at the legislative history of USERRA, it's supposed to be even easier for our men and women in uniform

[00:11:39] Speaker 03:
than it would be to make out a race case or something like that under Title VII.

[00:11:44] Speaker 03:
So that's where my argument is that it should be light.

[00:11:48] Speaker 03:
With respect to whether it's been met or not here, I think that the administrative judge below made a grievous error.

[00:11:57] Speaker 03:
And she did so by not crediting the temporal proximity.

[00:12:01] Speaker 03:
You'll recall her decision was that, well, temporal proximity doesn't matter because Chan was doing so much military service

[00:12:08] Speaker 03:
Well, Your Honor, that's a very dangerous precedent, and I urge this panel not to go down the road.

[00:12:16] Speaker 03:
Men and women in uniform, especially reservists like Chan, are having to go on a moment's notice to do their duty, and they don't get to decide.

[00:12:27] Speaker 01:
Okay.

[00:12:27] Speaker 01:
Counselor, you answered my question.

[00:12:28] Speaker 01:
I appreciate it.

[00:12:29] Speaker 01:
Thank you.

[00:12:30] Speaker 03:
I'll reserve the rest of my time.

[00:12:32] Speaker 00:
Thank you.

[00:12:33] Speaker 00:
All right.

[00:12:34] Speaker 00:
Well, can I just make a quick observation?

[00:12:37] Speaker 00:
Because I'm not sure.

[00:12:38] Speaker 00:
Maybe I misunderstood what you were saying or how this case was argued.

[00:12:41] Speaker 00:
It's kind of difficult to do this by telephone.

[00:12:44] Speaker 00:
But I think towards the end of your argument, sir, you were talking about the EEOC being a special kind of agency.

[00:12:51] Speaker 00:
And you kind of attributed sort of an intentional motive to discriminate against people in the military.

[00:12:58] Speaker 00:
or that they don't care about discrimination in the military, based on military service.

[00:13:04] Speaker 00:
And I think, I didn't see that argument in your brief.

[00:13:07] Speaker 00:
I don't think that's kind of a necessary or necessarily appropriate argument to be made here, given the legal standards and what's going on.

[00:13:17] Speaker 00:
So I didn't make that observation.

[00:13:19] Speaker 00:
If you'd like to respond, fine.

[00:13:21] Speaker 03:
Well, I would.

[00:13:21] Speaker 03:
I was making the point that they didn't investigate

[00:13:25] Speaker 03:
As an employer, an employer who is being challenged with discrimination is happening in the workplace, an employer has to investigate.

[00:13:34] Speaker 03:
And an employer here, the EEOC, they know this because they're the ones doing the investigation of, in my example, General Motors.

[00:13:42] Speaker 03:
But here, the EEOC as employer did no investigation.

[00:13:48] Speaker 03:
And had that been true of, in my example, General Motors, the EEOC would be the first one to say,

[00:13:55] Speaker 03:
That is evidence of intent to discriminate.

[00:13:59] Speaker 00:
Okay.

[00:14:00] Speaker 00:
I take your argument.

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

[00:14:01] Speaker 00:
Let's hear from the other side.

[00:14:06] Speaker 02:
May I begin your order?

[00:14:07] Speaker 02:
Ms.

[00:14:08] Speaker 02:
Kirschner?

[00:14:09] Speaker 00:
Yes, please.

[00:14:10] Speaker 02:
May it please the court?

[00:14:13] Speaker 02:
The board in this case applied the correct legal standard.

[00:14:18] Speaker 02:
it faithfully applied the she-hand factors.

[00:14:22] Speaker 02:
Specifically with regard to temporal proximity, the board did not ignore that factor.

[00:14:30] Speaker 02:
It gave a careful analysis.

[00:14:33] Speaker 02:
If we look at the, here we are concerned primarily about Mr. Green's motivation.

[00:14:40] Speaker 02:
That's where the accusations are being made, that Mr. Green discriminated or retaliated.

[00:14:48] Speaker 02:
Mr. Green, in May of 2018, placed Ms.

[00:14:55] Speaker 02:
Chan on a performance improvement plan and gave her an unsatisfactory rating.

[00:15:03] Speaker 02:
The board looked at the fact... Can I just ask you, Ms.

[00:15:05] Speaker 00:
Kerscher?

[00:15:06] Speaker 00:
Ms.

[00:15:06] Speaker 00:
Kerscher, this is Judge Proce.

[00:15:08] Speaker 00:
Sorry to interrupt, but we're limited in time.

[00:15:11] Speaker 00:
Let me give you a hypothetical.

[00:15:13] Speaker 00:
I mean, this seems to me a bit unusual because

[00:15:16] Speaker 00:
There was a lot of military service, at least during her initial period, for rather lengthy periods of time.

[00:15:24] Speaker 00:
So let's assume we have an employee, and we're dealing with one year for purposes of performance appraisal, and that person has called away the military for eight months of that 12-month period, that they are performing their military service under USERA for the eight months of the 12 months.

[00:15:42] Speaker 00:
What if the practical matter happens then?

[00:15:45] Speaker 00:
Obviously, the performance through the period is not going to be the same as another employee's would.

[00:15:53] Speaker 00:
Maybe there's training that necessarily would happen that this employee missed because she was on service.

[00:15:59] Speaker 00:
So what happens in that case where just looking on the cold record, the employer may have been justified because the employee, in fact, didn't meet the sufficient progress in the performance standards.

[00:16:13] Speaker 00:
But, it's a circumstance where her military service meant that she was away a lot and she couldn't reasonably have done so.

[00:16:21] Speaker 00:
What do we do in that case?

[00:16:22] Speaker 00:
And do you stare up?

[00:16:24] Speaker 02:
In that case, Your Honor, the employer has discretion to extend the performance period.

[00:16:30] Speaker 02:
And that is in fact what Mr. Green did initially for Ms.

[00:16:34] Speaker 02:
Chan.

[00:16:35] Speaker 02:
He extended her first performance period not because she was on leave, but to give her an additional

[00:16:43] Speaker 02:
opportunity to improve her performance.

[00:16:46] Speaker 02:
So if the court will recall, he extended the performance.

[00:16:50] Speaker 00:
Yeah, but what about my hypothetical?

[00:16:52] Speaker 00:
You say the employer has discretion.

[00:16:55] Speaker 00:
Discretion means he can do it and he cannot do it.

[00:16:59] Speaker 00:
So what about in a circumstance, in a hypothetical, where the employer doesn't extend it?

[00:17:05] Speaker 00:
And he says, this is a year period.

[00:17:08] Speaker 00:
You haven't met the expectations.

[00:17:10] Speaker 00:
And we all know that she couldn't possibly have met the expectations, because she was absent for 80% of the period.

[00:17:19] Speaker 00:
You say the employer has discretion that suggests that it would be OK if the employer said, too bad, so sad, you're done.

[00:17:27] Speaker 00:
Is that what you mean?

[00:17:28] Speaker 02:
No, Your Honor.

[00:17:29] Speaker 02:
I meant that there was discretion to extend the performance appraisal period to give

[00:17:35] Speaker 02:
person's additional opportunity to perform, not suggesting that there's a discretion to act in an arbitrary or capricious manner.

[00:17:45] Speaker 02:
And I take it that's the example you're presenting where an employer makes a conclusion which one could argue is arbitrary and capricious regardless of whether someone is in military service or not.

[00:18:07] Speaker 02:
I'm putting aside the question of whether or not it's motivated by military service.

[00:18:13] Speaker 02:
If there's a showing that the individual decision-maker is doing this because he's motivated by the fact that she's on military service, then the government's in violation of USERRA.

[00:18:33] Speaker 00:
Okay.

[00:18:34] Speaker 00:
Can you also comment briefly on the exchange your friend and I had towards the end about his suggestion that the EEOC in particular, because that's what they do, they require other employers to investigate that they really fell here short for the failure to investigate this.

[00:18:57] Speaker 00:
Do you have any comment on that?

[00:18:59] Speaker 02:
Yes, Your Honor.

[00:19:00] Speaker 02:
The board commented on that specifically.

[00:19:03] Speaker 02:
and considered whether that indicated that there was any discrimination or retaliation in the picture and found that there was not.

[00:19:14] Speaker 02:
The board pointed out that under this statutory scheme, it's the responsibility of Department of Labor to conduct the investigation.

[00:19:23] Speaker 02:
And in this case, there was a showing that the agency, the EEOC, was completely cooperative with the Department of Labor in giving them

[00:19:33] Speaker 02:
the information they needed.

[00:19:35] Speaker 02:
I would also like to point to the testimony that's in the record from Ms.

[00:19:42] Speaker 02:
Park Gonzalez, the deciding official who decided that Ms.

[00:19:47] Speaker 02:
Chan should be removed.

[00:19:49] Speaker 02:
She was questioned about Mr. Green, the director of the office, and she explained that they had a close relationship, that they were in communication all the time,

[00:20:02] Speaker 02:
that she knew about these performance difficulties, deficiencies of Ms.

[00:20:07] Speaker 02:
Chan, and she said specifically, based on all the communication, she had no reason to believe that Mr. Green was lying to her.

[00:20:17] Speaker 02:
So, you know, there's this reasonableness of the agency, and this is not a situation where the decision-maker totally ignores what's going on, which I think

[00:20:31] Speaker 02:
They're trying to imply by asserting that there's no investigation.

[00:20:36] Speaker 02:
Now, I'm not saying that what Ms.

[00:20:38] Speaker 02:
Park-Gonzalez did constitutes what would call, quote unquote, an investigation.

[00:20:45] Speaker 02:
What I'm saying is that her testimony shows a very close relationship between her and Mr. Green reporting to her all these difficulties with Ms.

[00:20:57] Speaker 02:
John's performance.

[00:20:58] Speaker 02:
And she's fully aware of them.

[00:21:00] Speaker 02:
And then she makes her final decision.

[00:21:03] Speaker 02:
And as I said, she testified explicitly she had no reason, based on all of her contacts with this Mr. Green and this long relationship, and being fully informed, she had no reason to believe he was lying.

[00:21:20] Speaker 00:
Okay, let me just ask you another thing.

[00:21:22] Speaker 00:
I mean, we've got several actions taken here.

[00:21:24] Speaker 00:
Obviously the big one was the performance appraisal and the removal, but she, I mean, Ms.

[00:21:31] Speaker 00:
Chan received a reprimand on the day she returned from military duty, correct?

[00:21:37] Speaker 02:
Yes, that's correct, Your Honor.

[00:21:40] Speaker 00:
And a PIP on another day that she returned from military duty, correct?

[00:21:45] Speaker 02:
Yes, Your Honor.

[00:21:48] Speaker 00:
So isn't this kind of an unusual case where there is an extreme proximity in time?

[00:21:57] Speaker 00:
And why is that not compelling evidence of discrimination?

[00:22:02] Speaker 02:
Well, in each case, you have to look at the, the judge has to look at the record before him.

[00:22:10] Speaker 02:
In this case, the board is essentially a judge and jury.

[00:22:14] Speaker 02:
and looked at all of the evidence.

[00:22:16] Speaker 02:
And in both situations, the timing was explained, specifically with regard to the reprimand, which followed a period of leave.

[00:22:29] Speaker 02:
Mr. Green explained the timing of that.

[00:22:32] Speaker 02:
The reprimand dealt with incidences of misconduct that had occurred in July and early August through

[00:22:42] Speaker 02:
August 4th, August 4th being the day that she works the unauthorized overtime.

[00:22:49] Speaker 02:
And then she goes immediately on leave.

[00:22:52] Speaker 02:
Now, Mr. Green explained that he had to have the reprimand inform his superiors about it, and it takes time to issue a reprimand.

[00:23:05] Speaker 02:
And then what I would also point out, Your Honor, is reprimands are not something that the government puts in the mail.

[00:23:12] Speaker 02:
It's not something that we send to somebody on email when they're off on military leave.

[00:23:20] Speaker 02:
A reprimand is handed to the employee when they are present in the office and they are asked to sign it.

[00:23:27] Speaker 02:
And in this case, Ms.

[00:23:28] Speaker 02:
John refused to sign it.

[00:23:29] Speaker 02:
But nonetheless, that's the procedure.

[00:23:32] Speaker 02:
She appears, she returns to work on the 22nd.

[00:23:35] Speaker 02:
That's the soonest time that Mr. Green can give her the reprimand for her conduct.

[00:23:40] Speaker 02:
back in July and then in early August and he does so at that time.

[00:23:45] Speaker 02:
So he fully explains the timing to the board and the board credits that explanation.

[00:23:52] Speaker 02:
So just the fact that two things coincide doesn't mean that there's a causal relationship.

[00:23:59] Speaker 02:
It might or it might not.

[00:24:01] Speaker 02:
But in this case there's a full explanation for the timing.

[00:24:06] Speaker 02:
And the board made the same finding with regard to the actions that Mr. Green took in May of 2018.

[00:24:16] Speaker 02:
And by the same I mean similar, Your Honor.

[00:24:21] Speaker 02:
He made a similar finding, an explanation of the timing.

[00:24:25] Speaker 02:
He credited the explanation.

[00:24:27] Speaker 02:
The reason that she was out in the period up until I think it's

[00:24:36] Speaker 02:
Excuse me.

[00:24:37] Speaker 02:
The period goes from April 3rd through May 6th.

[00:24:42] Speaker 02:
She's out for military leave.

[00:24:44] Speaker 02:
Mr. Green explains why she gets the unsatisfactory at that time.

[00:24:53] Speaker 02:
The reason is because he extended the prior period of performance.

[00:24:59] Speaker 02:
He gave her an additional 60 days to perform.

[00:25:05] Speaker 02:
And then gave her an evaluation in December of 2017.

[00:25:10] Speaker 02:
Then the next evaluation is due in May of 2018.

[00:25:19] Speaker 02:
And that explains the timing.

[00:25:23] Speaker 02:
And the board accepts that explanation for the timing.

[00:25:30] Speaker 02:
Each case is looked at in the context of the record that is presented to the decision maker, which is the board in this case, which is assessing, is temporal proximity, is it a reliable indicator of Mr. Green's intent?

[00:25:49] Speaker 02:
And the board concludes, no, it's not.

[00:25:52] Speaker 02:
It's not.

[00:25:52] Speaker 02:
She hasn't shown by a preponderance of the evidence, which is her burden,

[00:25:57] Speaker 02:
that Mr. Green is motivated by hostility towards a military service or that he's retaliating because she filed a USERRA complaint.

[00:26:09] Speaker 02:
And so it's the board's duty to act as the jury and apply the preponderance of the evidence test.

[00:26:21] Speaker 02:
I could go into some of the other issues that have been raised.

[00:26:25] Speaker 02:
Briefly, I'll just say with regard to the discrimination area, I think what's really being missed is that in the Ms.

[00:26:36] Speaker 02:
Chan's analysis and arguments is the fact that in the discrimination area, really what you're arguing about is do you get to the jury?

[00:26:46] Speaker 02:
Or is your case going to be stopped by a summary judgment motion on the part of the employer?

[00:26:53] Speaker 02:
And that's very, very different from here where the board is sitting as judge and jury and is deciding where the preponderance of the evidence lies and finds that the preponderance of the evidence does not show that Mr. Green was motivated in any respect, in any amount.

[00:27:18] Speaker 02:
by discrimination against her military service or retaliation because she filed USERRA complaints.

[00:27:27] Speaker 02:
And here there's faithful application of the Sheehan Factors.

[00:27:34] Speaker 02:
I have gone through temporal proximity.

[00:27:37] Speaker 02:
The board looked at all four of the Sheehan Factors, found with regard to the second one that there was no inconsistencies

[00:27:48] Speaker 02:
between Mr. Green's actions.

[00:27:53] Speaker 02:
He was consistent in all respects.

[00:27:58] Speaker 02:
There's a careful analysis for Sheehan factor three of the two remarks that Ms.

[00:28:05] Speaker 02:
Chan alleges that Mr. Green made.

[00:28:10] Speaker 02:
In one case, he's alleged to have looked at her calendar, which is in the record.

[00:28:16] Speaker 02:
appendix page 103 and to have remarked that's a lot of leave days.

[00:28:22] Speaker 02:
The board considers that and concludes that that's not evidence of him having a hostility to her going on military leave because, in short, actions speak louder than words.

[00:28:35] Speaker 02:
What Mr. Green does

[00:28:37] Speaker 02:
is ensure that she doesn't go on the intake calendar for July, having become aware of the fact that she is going on leave for a lot of days, or at least a lot of leave days are anticipated according to her calendar.

[00:28:52] Speaker 02:
The second remark he finds based on credibility that Mr. Green didn't make the remark that Ms.

[00:29:02] Speaker 02:
Chan is alleging that he made,

[00:29:05] Speaker 02:
He finds that she misunderstood him.

[00:29:09] Speaker 02:
With regard to the last factor, disparate treatment, he finds no disparate treatment.

[00:29:19] Speaker 02:
I feel like I'm going on and I'm not getting many questions.

[00:29:23] Speaker 02:
I think here, if you sum it up, there's no error of law.

[00:29:32] Speaker 02:
I would point the court just to page 22 of the opinion where the board says specifically that for her initial case, she was not required to show that she had satisfactory performance.

[00:29:47] Speaker 02:
Thank you.

[00:29:49] Speaker 00:
Thank you.

[00:29:52] Speaker 00:
Mr. Carter, I think you've got a few minutes remaining on rebuttal.

[00:29:55] Speaker 03:
Thank you, Your Honor.

[00:29:56] Speaker 03:
Just to answer your questions and your hypothetical,

[00:30:01] Speaker 03:
embodied in USERRA is the concept that, and this is in 4313 of the statute, 4311 of the statute, the escalator position concept.

[00:30:12] Speaker 03:
The whole idea with USERRA is that while you're away on your military service, it's as if you have not gone.

[00:30:19] Speaker 03:
And to your point, then the review should be the full year based on the four months.

[00:30:26] Speaker 03:
It's as if the service member has not gone.

[00:30:28] Speaker 03:
And so that is why the

[00:30:31] Speaker 03:
even the obligation to make up intakes is a violation of USERRA.

[00:30:36] Speaker 03:
And so that starts and spoils the relationship from the get-go.

[00:30:42] Speaker 03:
We should not even be talking about Mr. Green's intent to discriminate at all until the agency is bearing the burden, until the burden has been shifted.

[00:30:53] Speaker 03:
This is the error of law that I was discussing with Judge Raina.

[00:30:58] Speaker 03:
The point is,

[00:30:59] Speaker 03:
that you meet the initial burden by showing the temporal proximity that we've shown here, the lack of investigation, all of that meets the prima facie burden that then it should have then been shifted to the agency and then we should then be talking about Mr. Green's intent and we should be talking about, oh, hey, I don't discriminate against military people.

[00:31:24] Speaker 03:
I, when somebody's 15 minutes late, I write them up

[00:31:28] Speaker 03:
the non-military folks just the same.

[00:31:31] Speaker 03:
Or when I see somebody's got a messy office, I write them up just the same.

[00:31:36] Speaker 03:
Or when charging parties make a complaint, I don't care about the truth of those either.

[00:31:41] Speaker 03:
I just worry about the fact that there are complaints and I put it into a PIP for those people too.

[00:31:49] Speaker 03:
None of that is in this record.

[00:31:51] Speaker 03:
And the reason it's not in this record is because the burden was never shifted to the agency.

[00:31:57] Speaker 00:
Thank you.

[00:31:59] Speaker 00:
We thank both sides and the case is submitted.

[00:32:01] Speaker 00:
That concludes our proceedings this morning.

[00:32:05] Speaker 03:
Thank you, Your Honor.

[00:32:06] Speaker 03:
The Honorable Court is adjourned from day to day.