[00:00:33] Speaker 02:
Okay, the next argued case is number 19-1676, Harris against the Securities and Exchange Commission.

[00:00:41] Speaker 02:
Mr. Branch, when you're ready.

[00:00:46] Speaker 04:
Yes.

[00:00:46] Speaker 04:
Good morning.

[00:00:47] Speaker 04:
May it please the court?

[00:00:51] Speaker 04:
The issue in this petition is the termination of a supervisory security specialist, a Coupe branch manager at the Securities and Exchange Commission.

[00:01:02] Speaker 04:
and the issue is whether there's substantial evidence in the record to support the decision.

[00:01:07] Speaker 04:
It's appellant's position that the decision lacks substantial evidence, primarily because the administrative judge did not consider evidence which contradicted statements from witnesses in the record.

[00:01:22] Speaker 04:
He did find that the agency witnesses were credible, but he did not consider evidence which contradicted that evidence in the record.

[00:01:30] Speaker 01:
How do we know he didn't consider it?

[00:01:32] Speaker 04:
Was it in the record?

[00:01:34] Speaker 04:
It was in the record, but he did not note it in his opinion.

[00:01:37] Speaker 04:
But he was not required to do that.

[00:01:40] Speaker 04:
He was not required to do that, but the fact that the sum of this evidence contradicted what contradicted his own findings suggests that he did not adequately consider and assess this evidence.

[00:01:54] Speaker 01:
And the court has decided... Can you give me a specific example?

[00:01:59] Speaker 01:
I mean, the fact that

[00:02:00] Speaker 01:
He didn't specifically explain why he found that other evidence not credible and the agency's witnesses credible doesn't seem to suggest that he didn't consider it.

[00:02:15] Speaker 04:
So, Your Honor, it starts with the appellant's performance appraisals.

[00:02:21] Speaker 04:
She started in 2014.

[00:02:22] Speaker 04:
From 2014 until 2017, she had satisfactory or seized expectations performance appraisals.

[00:02:29] Speaker 04:
There's no reference to that.

[00:02:31] Speaker 04:
In 2017, the year that she was proposed, placed on the PIP and later proposed for termination, for nine months during this rating cycle, her performance was acceptable.

[00:02:43] Speaker 04:
She received a mid-year review.

[00:02:45] Speaker 04:
It was only the last three months when she got a new supervisor that there was an assertion that her performance was not acceptable.

[00:02:53] Speaker 01:
Another example is the... How is that inconsistent with the fact that

[00:02:57] Speaker 01:
performance during her PIP was unacceptable.

[00:03:02] Speaker 01:
Your Honor, it's inconsistent.

[00:03:04] Speaker 01:
This is what happens all the time in these government performance cases that people get rated acceptable for a while and then maybe their duties change, maybe they get promoted to do something they're not capable of and they get put on a PIP and they can't do it.

[00:03:17] Speaker 01:
But that's the fact that there's I mean the fact that there's prior acceptable performance ratings is certainly relevant but it doesn't contradict

[00:03:26] Speaker 04:
finding that later performance is unacceptable does it your honor so she did not get a new position or get additional duties she was still performing the same duties so nine months out of this performance cycle well it wasn't nine months because part of it was a short period of time when she was reassigned but even when she was reassigned during this performance cycle her performance was acceptable

[00:03:50] Speaker 04:
But nine months into this performance cycle, her duties have not changed substantially, and they don't change substantially in the last three months.

[00:03:59] Speaker 04:
but a decision was made after assessing her, reviewing her for the last three months that she would be placed on a PIP.

[00:04:06] Speaker 01:
So it's slightly different from someone receiving a favorable evaluation for many years and then... Well, it still doesn't matter if they found that she was not doing her job acceptably, the fact that they previously found her doesn't stop them from changing their minds.

[00:04:22] Speaker 01:
As long as they tell her, here are your job duties, here are what we expect of you, and here's the opportunity to perform.

[00:04:29] Speaker 01:
Why aren't we focusing on what she did during this PIP and why it didn't meet expectations?

[00:04:38] Speaker 04:
Your Honor, that's part of the calculation, and I was going to go to the next point, which was the October 2017

[00:04:47] Speaker 04:
there was a calibration session.

[00:04:49] Speaker 04:
And Mr. Girard, the gentleman in the record, recorded notes during the calibration session.

[00:04:55] Speaker 04:
One of the reasons why a decision was made to terminate her was this claim that somehow she did not go along or agree with this consensus that one of her subordinate employees was not performing, Mr. Holland.

[00:05:08] Speaker 04:
And the record establishes that his notes, Mr. Girard's notes, actually contradict this, or at least they're inconsistent.

[00:05:17] Speaker 04:
First the notes indicate that the session started with a comment by Ms.

[00:05:22] Speaker 04:
Harris that Mr. Holland and another employee were performing, they were doing their job, they were performing well.

[00:05:27] Speaker 04:
During this rating period, Mr. Holland had received a performance bonus or performance award from another supervisor.

[00:05:35] Speaker 04:
And at the end of his notes, he indicates that as of now, this is where we are.

[00:05:40] Speaker 04:
There was no consensus that this gentleman should receive a failing or unacceptable performance rating.

[00:05:49] Speaker 04:
So this case is just the thinnest... Based upon his notes, right?

[00:05:53] Speaker 01:
Yeah, based on... But there was testimony from other people about that.

[00:05:56] Speaker 01:
there was a different conclusion reach wasn't there well your honor it's the testimony you're asking us to privilege his notes over other testimony well which is is certainly something you can argue to the administrative judge the fact finder but we don't get to reweigh those facts we get to reweigh whether the administrative judge made a factual finding that's supported by evidence even if it's contradicted by other evidence your honor i think the case well your honor i think the court's

[00:06:24] Speaker 04:
is to consider the entire record.

[00:06:29] Speaker 01:
And the court's decisions... So if there's two pieces of evidence in the record and one says one thing, one says the other thing, the administrative judge went with the one thing, we can't go with the other thing just because you want us to, can we?

[00:06:42] Speaker 04:
Well, no, you can't, Your Honor.

[00:06:44] Speaker 04:
I'm not suggesting that.

[00:06:45] Speaker 04:
What I'm suggesting is this court has indicated and the MSPB has indicated that

[00:06:51] Speaker 04:
It's the obligation to consider the individual's performance both before, during and after the PIP.

[00:06:57] Speaker 04:
Those are relevant considerations.

[00:07:00] Speaker 04:
And for Ms.

[00:07:01] Speaker 04:
Harris here in particular, before the PIP, there were no issues.

[00:07:04] Speaker 04:
She's exceeding her performance.

[00:07:06] Speaker 04:
What we have is isolated incidents while she was on the PIP.

[00:07:10] Speaker 04:
and a lot of that is contradicted.

[00:07:12] Speaker 04:
I mean, there were four reasons that they gave for terminating her, and these are just the thinnest of reasons imaginable.

[00:07:20] Speaker 04:
And the administrative judge did not consider, well, I won't say he did not consider, but his decision does not reflect the evidence that was presented.

[00:07:32] Speaker 04:
I mean, she was terminated for her work on this COOP resource project.

[00:07:39] Speaker 04:
There was an allegation that there was an executive summary that was not clear.

[00:07:45] Speaker 04:
This examinee or a similar version of this executive summary was presented to the supervisor prior to the time that she was placed on the PIP.

[00:07:54] Speaker 04:
There was no issue with it, but suddenly when she was on the PIP,

[00:07:57] Speaker 04:
At least the administrative judge found that there was an issue with the executive summary.

[00:08:02] Speaker 04:
There's this issue of a mathematical calculation.

[00:08:07] Speaker 04:
Ms.

[00:08:08] Speaker 04:
Harris was not experienced in Excel.

[00:08:10] Speaker 04:
Her supervisor required her to use Excel to do this calculation.

[00:08:14] Speaker 04:
There was an error in the calculation.

[00:08:16] Speaker 04:
That's how thin this case is that led to the termination of Ms.

[00:08:22] Speaker 04:
Harris.

[00:08:23] Speaker 04:
I just referenced briefly the October 23, 2017 calibration session where there was an allegation that she did not go along with the consensus of one of her subordinate employees.

[00:08:35] Speaker 04:
As a result of this session, this calibration session, there was a statement made that there was some concern that the employee who was being evaluated, Mr. Holland,

[00:08:46] Speaker 04:
had a temper in that there was going to be some investigation.

[00:08:50] Speaker 04:
There was a gentleman named Dave Brown who was brought in to talk to Ms.

[00:08:55] Speaker 04:
Harris to do an investigation during the course of this

[00:08:58] Speaker 04:
Ms.

[00:08:59] Speaker 04:
Harris indicated that she had notes, but she could not locate her notes.

[00:09:03] Speaker 04:
As a result of Ms.

[00:09:04] Speaker 04:
Harris not being able to locate her notes as a part of this interview process, that's one of the basis for terminating her.

[00:09:12] Speaker 04:
And the final issue was the performance reviews.

[00:09:16] Speaker 04:
There was an issue of a delay in the performance reviews.

[00:09:20] Speaker 04:
There was evidence in the record that Ms.

[00:09:23] Speaker 04:
Harris and Ms.

[00:09:24] Speaker 04:
Clancy, a coworker, were to

[00:09:27] Speaker 04:
and there was an issue with the agency's system that was performing this function for the co-planners.

[00:09:38] Speaker 04:
It did not function as it should and there was a delay in doing this.

[00:09:43] Speaker 04:
This was presented in the evidence and the administrative judge concluded that

[00:09:49] Speaker 04:
Regardless of statements that were either inconsistent or contradicted, some of the reasons are noted by the agency in the termination that the termination would go forward.

[00:10:03] Speaker 04:
This PIP, as we indicated and it was clear in the record, the decision to terminate was already made when she was placed on the PIP.

[00:10:15] Speaker 04:
We know that because the agency's Office of General Counsel was actually

[00:10:19] Speaker 04:
responsible for preparing the PIP, and it was issued through the supervisor, but it basically came through the Office of General Counsel.

[00:10:25] Speaker 01:
I don't understand why that means it's predetermined.

[00:10:28] Speaker 01:
Lots of government agencies, when they put people on PIPs, want to make sure they're doing it in a legally correct way, because Chapter 43 has some pretty strict requirements.

[00:10:38] Speaker 01:
So why does the fact that they got OGC to bless it mean that it was predetermined?

[00:10:43] Speaker 01:
OGC wasn't the final decision maker on the PIP, were they?

[00:10:46] Speaker 04:
Well, OGC was advising the manager.

[00:10:51] Speaker 04:
I know, but they were involved in every step of the process.

[00:10:53] Speaker 04:
First, placing her on the PIP, setting up the terms for the PIP.

[00:10:57] Speaker 04:
We have, I know, 15 factors or so and she can't make more than two mistakes on any of these factors.

[00:11:06] Speaker 04:
This PIP was vague.

[00:11:09] Speaker 04:
And it was basically unattainable by basically any federal employee.

[00:11:15] Speaker 04:
This was designed from the beginning for her to fail the PIP.

[00:11:37] Speaker 04:
Your Honor, I'll just reserve the remaining minutes if there aren't any other questions.

[00:11:42] Speaker 02:
Okay, thank you.

[00:11:43] Speaker 02:
You have rebuttal time.

[00:11:53] Speaker 02:
Ms.

[00:11:53] Speaker 02:
Vanden.

[00:11:56] Speaker 00:
May it please the Court, on behalf of the SEC, we ask that this Court either dismiss this case as a mixed case, having determined that the waiver, the purported waiver, is ineffective, or

[00:12:06] Speaker 01:
I'm not sure why that waiver isn't effective.

[00:12:11] Speaker 01:
I mean, she made a bunch of these arguments that she's now making in support of a discrimination claim, but they also seem to go towards non-discrimination defenses too.

[00:12:23] Speaker 01:
So the fact that she made them as part of a discrimination claim that she's now waived doesn't seem like it would prohibit her from saying

[00:12:31] Speaker 01:
Well, this was predetermined, not for discriminatory reasons, but just for non-discriminatory reasons.

[00:12:36] Speaker 01:
Why isn't that correct?

[00:12:37] Speaker 00:
Right.

[00:12:38] Speaker 00:
So in a case on different facts, that might be the case.

[00:12:41] Speaker 00:
Here, the facts are so unique that I don't think it works out that way.

[00:12:45] Speaker 00:
She continues to maintain a district court, DC District Court litigation, challenging this performance, particularly the PIP.

[00:12:55] Speaker 01:
But it's not a challenge to her removal.

[00:12:57] Speaker 00:
Well, it does.

[00:12:59] Speaker 00:
Through the progression of the allegations, argue that the discrimination culminated in the proposed termination and the termination, and in the relief requested from the district court, she asked for reinstatement.

[00:13:11] Speaker 00:
Also, whether it's specifically pled in the district court or not, in order for the United States to defend itself in that action, she's asked to be reinstated.

[00:13:21] Speaker 00:
All of the conduct and the performance leading up to that termination would be at issue.

[00:13:27] Speaker 00:
So we submit that it is before the district court.

[00:13:29] Speaker 01:
Now she could waive all of those claims in the federal circuit and that waiver would be binding in the district court, but as we presently stand... Wasn't that up to the district court to determine what the effect of her waiver of discrimination claims here is with regard to what the district court can hear?

[00:13:48] Speaker 01:
Because the district court can certainly hear discrimination claims arising out of the same set of facts if she's pursuing damages, for instance, or something like that, right?

[00:14:00] Speaker 00:
Yes, but not simultaneously, right?

[00:14:02] Speaker 00:
She's pursuing on alternate theories.

[00:14:05] Speaker 01:
Right, but she has affirmatively waived any discrimination challenges to her removal in the course of the action of this case.

[00:14:14] Speaker 01:
And so if we accept that,

[00:14:18] Speaker 01:
Then what happens in the district court seems like it should be for the district court to decide the effect of that waiver here, not for us to tell the district court to dismiss that case, or for us not to hear a case where she's made a seemingly complete waiver.

[00:14:34] Speaker 00:
You're correct that the district court would decide what the effect of this court's waiver is, and there is binding authority in the D.C.

[00:14:40] Speaker 00:
Circuit that the waiver here is binding in the D.C.

[00:14:42] Speaker 00:
action, but to the extent this court were to hold her to her waiver here, leaving the district court aside... Well, she's asked us to hold her to her waiver.

[00:14:50] Speaker 00:
Yes, but on the facts of this case and given the arguments raised in the brief,

[00:14:55] Speaker 00:
While she has filed a formal waiver of her discrimination claims, the arguments that she presses continue to sound in discrimination and pretext and retaliation before the board.

[00:15:08] Speaker 00:
This is a case that winds its way here from the administrative judge at the board.

[00:15:13] Speaker 00:
Before the board, her only, other than challenging just the substantial evidence, her only allegations, her only affirmative defenses were that there was racial discrimination and retaliation.

[00:15:29] Speaker 00:
This court now hears a narrower piece of what was below the board below.

[00:15:34] Speaker 00:
There were no alternative theories.

[00:15:39] Speaker 03:
Other than race and retaliation.

[00:15:41] Speaker 03:
She's arguing that Mr. Giraud, who was her supervisor at one point, sort of had a conflict of interest based on the earlier EEOC complaint, and that he should have basically recused.

[00:15:55] Speaker 03:
This is a violation of her due process rights, or so she's arguing.

[00:15:58] Speaker 00:
Or so she's arguing.

[00:15:59] Speaker 03:
So in substance, there's an overlap there, but it sounds a little different than an argument based on discrimination.

[00:16:08] Speaker 00:
Well, it's a retaliation argument, right?

[00:16:10] Speaker 00:
Mr. Girard was the focus of her EEO complaints.

[00:16:13] Speaker 03:
Not necessarily.

[00:16:13] Speaker 03:
It's just an argument that he shouldn't have been involved in the decision-making because it was a prior incident and he should have recused himself.

[00:16:25] Speaker 00:
Okay.

[00:16:25] Speaker 00:
So assuming, are you under there's something left, right, that's not retaliation.

[00:16:29] Speaker 00:
that there is a residual due process claim.

[00:16:34] Speaker 00:
To the extent she similarly made that argument before the board, the administrative judge pressed her as to whether she was in fact raising a due process argument or a retaliation argument, and she affirmatively waived the due process argument before the board and proceeded

[00:16:49] Speaker 00:
solely on the retaliation theory.

[00:16:52] Speaker 01:
So to the extent she's raising that now, where she's affirmatively waived it, then wouldn't your argument just be that she's waived that new argument?

[00:16:59] Speaker 01:
Not that it's a discrimination argument, which she explicitly says she's not making.

[00:17:04] Speaker 00:
Right.

[00:17:04] Speaker 00:
That is an argument that we've made.

[00:17:05] Speaker 00:
We have several arguments in return here.

[00:17:07] Speaker 01:
I understand.

[00:17:08] Speaker 01:
Do you want to turn to the substantial evidence question briefly?

[00:17:11] Speaker 01:
Yes, absolutely.

[00:17:11] Speaker 00:
So the governing standard for this court's review of anything within its jurisdiction is whether or not on these facts the termination was supported by substantial evidence.

[00:17:21] Speaker 00:
That's a high bar and we would submit that on this record the factual evidence is overwhelmingly in support of substantial evidence.

[00:17:30] Speaker 00:
Ms.

[00:17:30] Speaker 00:
Harris was found to have had interpersonal issues and issues with

[00:17:36] Speaker 00:
She was placed on a PIP.

[00:17:38] Speaker 00:
The PIP was 90 days.

[00:17:40] Speaker 00:
Various courts to have considered the PIP and the duration of a PIP have recognized that PIPs as short as 30 days are sufficient.

[00:17:48] Speaker 00:
So I don't think we have a timeliness problem here.

[00:17:52] Speaker 00:
In order for the termination to be supported by substantial evidence, she need to have been given warning of her inadequacies and an opportunity to improve them.

[00:18:00] Speaker 00:
The PIP was that warning.

[00:18:03] Speaker 00:
And her opportunity to improve came through those 90 days where she had weekly meetings with her supervisor.

[00:18:10] Speaker 00:
Her supervisor was also available for ad hoc meetings.

[00:18:14] Speaker 00:
She was given extensions for work product.

[00:18:17] Speaker 00:
She was given opportunities to improve or redo work product that was due in that period.

[00:18:22] Speaker 00:
I don't want to get too far away from the over-contextualized or the larger context of this case.

[00:18:29] Speaker 00:
Ms.

[00:18:30] Speaker 00:
Harris was a branch chief.

[00:18:32] Speaker 00:
She was in charge of and responsible for continuity of operations COOP for the SEC.

[00:18:38] Speaker 00:
This was her section, her division.

[00:18:41] Speaker 00:
At the start of the PIP, she made a complaint to her supervisor that her section was understaffed.

[00:18:48] Speaker 00:
Her supervisor then said, okay, prepare for me a resource analysis report.

[00:18:54] Speaker 00:
What projects does COOP work on?

[00:18:57] Speaker 00:
How many hours do those projects require?

[00:19:00] Speaker 00:
What staff do you have to complete them, right?

[00:19:02] Speaker 00:
And then we'll assess what your staffing levels are and whether more staff is needed.

[00:19:07] Speaker 00:
Throughout the next month, she either failed or refused to produce a workable report.

[00:19:14] Speaker 00:
That report was called for in response to her own complaint that her section was understaffed.

[00:19:20] Speaker 00:
She was given numerous opportunities to put that information to her supervisor and she just couldn't do it.

[00:19:25] Speaker 00:
Eventually, the spreadsheet that she compiled contained missing information, mathematical errors, and her supervisor relieved her of the obligation of finalizing it.

[00:19:33] Speaker 00:
She was then tasked instead to produce an executive report.

[00:19:37] Speaker 00:
As the administrative judge goes into great detail on, he found that executive summary, which is in the record, to be on its face unprofessional.

[00:19:46] Speaker 00:
It had fonts of various sizes.

[00:19:49] Speaker 00:
Three quarters of it is concerned not with providing recommendations on current and future staffing levels, but on grievances about having had to produce this report in the first instance.

[00:20:00] Speaker 00:
Further to that, she also suffered inadequacies in terms of performance evaluations for her own subordinate employees.

[00:20:12] Speaker 00:
There was a consensus meeting amongst supervisors, a calibration meeting as my opposing counsel calls it.

[00:20:19] Speaker 00:
There was a consensus reached for a rating to give to Mr. Holland, a subordinate.

[00:20:24] Speaker 00:
She then deviated from that rating and gave him a higher one.

[00:20:28] Speaker 00:
She also complained at the meeting that she did not want to convey the lower rating to Mr. Holland.

[00:20:36] Speaker 00:
And in response to that, management again stepped up and said, well, let's see how we can help you, right?

[00:20:41] Speaker 00:
Mr. Brown, another employee, was tasked with doing an investigation to see whether there was an issue with Mr. Holland to substantiate Ms.

[00:20:50] Speaker 00:
Harris's complaints.

[00:20:52] Speaker 00:
She then frustrated his investigation.

[00:20:54] Speaker 00:
So what we have here is someone who's responsible for a branch who

[00:20:58] Speaker 00:
She can't show up to meetings to talk about her branch's core responsibilities.

[00:21:03] Speaker 00:
She can't produce a report summarizing its projects and its resources and what's needed now and in the future.

[00:21:11] Speaker 00:
She has interpersonal issues with her supervisor and other staff, and for those reasons, she was ultimately terminated.

[00:21:20] Speaker 00:
We would submit that to the extent this court takes jurisdiction to hear this matter, arguments such as the due process claim or other arguments sounding in pretext or predetermination are waived and she should be held to waver on those arguments.

[00:21:41] Speaker 00:
Assume they're not waived.

[00:21:43] Speaker 00:
Do you want to comment on them?

[00:21:45] Speaker 00:
Sure.

[00:21:46] Speaker 00:
So with respect to the due process argument, as I'd mentioned, in substance is a retaliation argument.

[00:21:52] Speaker 00:
To the extent one were to construe it as a due process argument, it's not developed, and so it would be waived on that reason as well.

[00:21:59] Speaker 00:
She doesn't cite any authority for any due process principles, and there is no law that we're aware of that says that this deciding official couldn't be the deciding official.

[00:22:09] Speaker 00:
for her termination.

[00:22:10] Speaker 00:
He was her second line supervisor.

[00:22:13] Speaker 00:
Instead, as this court's love shin decision makes clear, the governing standard is substantial evidence, right?

[00:22:20] Speaker 00:
It doesn't look specifically to who made what decisions.

[00:22:23] Speaker 00:
It looks at the entirety of the record as we submit.

[00:22:27] Speaker 00:
The termination decision was supported by substantial evidence.

[00:22:30] Speaker 00:
With regards to any claims of pretext or predetermination that are somehow separate from discrimination or retaliation, we don't think there's anything there.

[00:22:40] Speaker 00:
Nothing was same as with the due process argument.

[00:22:43] Speaker 00:
No alternative theories were developed before the board and would not be preserved for this court to rule on now.

[00:22:51] Speaker 00:
There was no debate before the board, say,

[00:22:54] Speaker 00:
that one supervisor was putting her on a PIP and terminating her in order to favor another employee.

[00:23:02] Speaker 00:
That would be a kind of pretext or predetermination that might not be discrimination based.

[00:23:08] Speaker 00:
None of that was before the board.

[00:23:09] Speaker 00:
None of those arguments have been developed or preserved.

[00:23:15] Speaker 00:
We would also put forth that anything that concerns the pre-PIP performance

[00:23:21] Speaker 00:
My colleague had mentioned some of that earlier, her performance from October 2014 to the point of the PIP.

[00:23:28] Speaker 00:
All of that is waived and should not be simultaneously considered by this court because that is indisputably squarely in front of the district court right now.

[00:23:40] Speaker 00:
The only thing that could theoretically be remaining is just whether or not her termination was supported by the substantial evidence and as we have submitted,

[00:23:48] Speaker 00:
We believe that the record adequately supports that.

[00:23:52] Speaker 00:
If the panel has no further questions.

[00:24:03] Speaker ?:
Thank you.

[00:24:03] Speaker 04:
Mr. Branch.

[00:24:03] Speaker 04:
Yes, Your Honor.

[00:24:04] Speaker 04:
Just once again, our position is that the administrative judge did not consider or assess all of the evidence in the record, particularly the evidence that

[00:24:18] Speaker 04:
either contradicted the reasons offered by the agency or supported the appellant's position.

[00:24:25] Speaker 04:
A glaring example of that is in the opening page, maybe the first or second page, without making any comment about Ms.

[00:24:34] Speaker 04:
Harris' prior performance or her performance evaluations, there's a reference to the fact that some employee made an accusation that

[00:24:43] Speaker 04:
Ms.

[00:24:43] Speaker 04:
Harris, an African American female, stood up in a meeting with her subordinate employees and stated that her supervisor, a Caucasian female, was a bitch.

[00:24:55] Speaker 04:
And the administrative judge made a point of putting that in the record and then he notes in a footnote that the finding on this allegation was inconclusive.

[00:25:07] Speaker 04:
directing any attention to her prior evaluations or her performance, but making that type of comment in the record.

[00:25:14] Speaker 04:
Now concerning whether there was substantial evidence to support the action taken against Ms.

[00:25:21] Speaker 04:
Harris

[00:25:21] Speaker 04:
This starts with a PIP.

[00:25:23] Speaker 04:
There's no evidence of any performance issues before the PIP.

[00:25:26] Speaker 04:
She gets notice of these alleged performance issues when she gets this PIP on October 2, 2017, and she's placed on a 90-day PIP.

[00:25:38] Speaker 04:
The evidence in the record does not support this, I don't want to say exaggerated, but

[00:25:44] Speaker 04:
There seems to be more argument here than there was in the record about Ms.

[00:25:50] Speaker 04:
Harris allegedly missing meetings and not being able to produce a work product or the supervisor making herself available on a weekly basis for meetings or an ad hoc basis.

[00:26:02] Speaker 03:
Is there any rule or regulation that imposes an obligation to notify an employee of a performance issue before a PIP is issued?

[00:26:13] Speaker 04:
Your Honor, we cited the authority in our brief of cases being considered by the board where the employee... I mean, doesn't the PIP itself inform her of the issues that she confronts?

[00:26:33] Speaker 04:
The PIP informs her there's no warning before the PIP.

[00:26:38] Speaker 04:
If there was a genuine concern that you had

[00:26:40] Speaker 04:
that an employee had performance issues you would expect to see in the record and some evidence that there was some warning or some indication before the time you're placed on the PIP.

[00:26:51] Speaker 04:
This is after the end of her evaluation period.

[00:26:55] Speaker 04:
After 2017, she goes through nine months, no issue.

[00:26:59] Speaker 04:
She goes through the remaining three months, no issue.

[00:27:02] Speaker 04:
After that period, that's when she's informed

[00:27:05] Speaker 04:
We have concerns about your performance, you're being placed on a PIP, you have 90 days to improve your performance, and you're out of here in 90 days.

[00:27:15] Speaker 03:
There's no rule that requires that a warning be given?

[00:27:18] Speaker 04:
No rules that a warning be given, but case authority suggests that the MSPB should look at both the performance of the employee before the PIP, during the PIP, and after the PIP as well.

[00:27:40] Speaker 04:
I mentioned also that there was no reasonable opportunity for this employee to improve.

[00:27:49] Speaker 04:
There was some discussion about this COOP resource project.

[00:27:53] Speaker 04:
The fact of the matter is that Ms.

[00:27:56] Speaker 04:
Harris was given this project, and at the same time, this project was previously assigned to a vendor or contractor, and the contractor took 2,400 hours to build the SEC for 24 hours to work on this project.

[00:28:11] Speaker 04:
Ms.

[00:28:11] Speaker 04:
Harris was given two weeks to complete the project.

[00:28:13] Speaker 04:
At the time she was given this time to complete the project, one, her administrative assistant was removed from her, and a staff member had been detailed out of her

[00:28:22] Speaker 04:
out of her jurisdiction, out of her authority.

[00:28:24] Speaker 04:
All of this is in the record.

[00:28:26] Speaker 04:
So there was no effort, there was never any intent for Ms.

[00:28:30] Speaker 04:
Harris to succeed while on this PIP.

[00:28:32] Speaker 04:
This project was an example of it, of a supervisor saying, I'm going to place you on a project where I can make a subjective determination as to whether you meet the requirements of this project, and if I determine solely that you don't meet these requirements,

[00:28:45] Speaker 04:
You're going to be removed.

[00:28:46] Speaker 04:
That's what happened.

[00:28:46] Speaker 04:
She was terminated after 90 days, immediately after the conclusion of this PIP.

[00:28:52] Speaker 04:
It was already decided before she was placed on the PIP.

[00:28:55] Speaker 02:
Thank you.

[00:28:58] Speaker 02:
Thank you.

[00:28:58] Speaker 02:
Thank you both.

[00:29:00] Speaker 02:
The case is taken under submission.

[00:29:02] Speaker 02:
And that concludes our argued cases for today.