[00:00:01] Speaker 02:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 02:
God save the United States and this honorable court.

[00:00:10] Speaker 02:
Good morning, all.

[00:00:11] Speaker 05:
The first case for argument is 191481, Pollitt versus DDA.

[00:00:18] Speaker 05:
Mr. Smarto, whenever you're ready.

[00:00:20] Speaker 01:
Thank you, Judge.

[00:00:21] Speaker 01:
I just wanted to point out, I'm having just a little difficulty hearing you.

[00:00:24] Speaker 01:
I heard the other judges perfectly clearly.

[00:00:27] Speaker 01:
I just wanted to point that out in case you have any questions, I may have to ask you to repeat.

[00:00:31] Speaker 01:
Please.

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

[00:00:32] Speaker 01:
Good morning, Judge.

[00:00:35] Speaker 01:
My name is John Smarto, and may it please the court, I represent Hallam Pollitt in these two joint appeals that came from Administrative Judge Michael T. Rudisill sitting for the Emeritus and Prosection Board.

[00:00:49] Speaker 01:
These joint appeals involve a suspension and a termination.

[00:00:55] Speaker 01:
I have 10 minutes to present my case.

[00:00:57] Speaker 01:
I'm going to be as brief and quick as possible.

[00:00:59] Speaker 01:
I wanted to first point out that the initial suspension we are dealing with is a whistleblower situation.

[00:01:06] Speaker 01:
My client was deemed a whistleblower.

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She disclosed certain information that was affecting patient care with relative to blood gas readings and hemoglobin readings.

[00:01:15] Speaker 01:
She was deemed a whistleblower and she was also deemed that the disclosures were legitimate and definitely a legitimate concern to the VA health system in Pittsburgh.

[00:01:26] Speaker 05:
Unfortunately, I'm sorry.

[00:01:29] Speaker 05:
Sorry to interrupt, but we're limited in time.

[00:01:33] Speaker 05:
So it seems like by the time you got to your grave recently, you had distilled your principal argument to be the nature of the penalty here.

[00:01:45] Speaker 01:
Correct.

[00:01:45] Speaker 05:
Under the Douglas factors.

[00:01:47] Speaker 05:
So is that a fair representation?

[00:01:50] Speaker 01:
Yes.

[00:01:50] Speaker 01:
I just wanted to give a very brief background.

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We are going to focus primarily on that, Judge.

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There was an issue of reprisal that was involved in both of these particular appeals.

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You know, we're prepared to probably concede the fact that there was no reprisal here in either situation, especially with the determination because of the period and passage of time.

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And what we're focusing on is a 22-year employee who was basically fired for absenteeism.

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She had a very, very fine record in her 22 years at the VA.

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Unfortunately, at the time she made these initial disclosures in 2012, she unfortunately got into some disputes with her supervisor and she was having issues at work over that three-year period.

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Eventually she had missed some time in September and October

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2014 that were unexcused.

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She was suspended 14 days and did not challenge that suspension.

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Eventually there was an issue in January of 2015 where there was some inclement weather and she had also recently had surgery.

[00:03:04] Speaker 05:
I'm sorry to keep interrupting you but we've, believe me, we've read the briefs and we understand the facts here.

[00:03:10] Speaker 05:
So let me just inquire on, it seems like your argument with respect to the Douglas factors comes down to

[00:03:19] Speaker 05:
the agency's obligation, in your view, to have affirmatively gone to everything she did in 22, her conduct in 22 years, with the exception of this, and to give arguments as to why her environment and harassment and the circumstances of her environment caused this change in the last few years.

[00:03:44] Speaker 05:
And one of my problems is,

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that she didn't, it doesn't seem to be based on what we have on the record, that she was really offering this, either as a defense or as a reason.

[00:03:55] Speaker 05:
It seems like you're sort of shifting the burden and saying, well, the agency has an affirmative obligation to look at all that stuff, not the, her not making the case for that stuff in her appeal.

[00:04:08] Speaker 01:
The only thing I could say with regard to that, we're not trying to shift the burden.

[00:04:12] Speaker 01:
It's a cancer case process.

[00:04:13] Speaker 01:
We can't do that.

[00:04:15] Speaker 01:
For timing, Mr. Samardo has 10 minutes and 44 seconds remaining in his total time, including rebuttal.

[00:04:39] Speaker 02:
Okay.

[00:04:39] Speaker 02:
So, Mr. Smarter, do you recall where we left off?

[00:04:42] Speaker 05:
I think you were responding.

[00:04:43] Speaker 05:
You said there's no burden that she had, but responding to what burden there was for the agency to investigate matters that she did not call to their attention.

[00:04:54] Speaker 01:
Well, first of all, I think she did briefly, and I think the deciding official, Dr. McPherson, did reference that she was having some issues with her supervisor.

[00:05:02] Speaker 01:
He didn't know the specifics of it, but he said he had an inkling that there was an issue there.

[00:05:06] Speaker 01:
that was never looked at week i'd believe when you look at somebody's entire work history over those twenty two years if douglas factor four means anything you just can't look at length of service you have to look at the at her performance or job performance how she got along with her fellow employees what kind of employee she was over that period of time uh... dr macpherson limited inquiries three years which we we can we will continue work three not very good years for this person and marlo yes

[00:05:35] Speaker 04:
So as I understand your argument, you're saying that because the deciding official said that he had an inkling there was trouble because of the nature of her reply.

[00:05:47] Speaker 04:
She was, I guess, talking about how, you know, I don't remember what it was exactly, but he said something about the nature of her reply suggested to him, gave him an inkling that there could be, that she didn't have a good relationship with her supervisor or something.

[00:06:04] Speaker 04:
How, how doesn't she have some, shouldn't she have to really bear that out and say, I mean, now on appeal, you're urging a harassing work environment, but none of that was introduced or developed by her in her reply.

[00:06:19] Speaker 04:
How can she argue this for the first time on appeal?

[00:06:23] Speaker 01:
I don't know how, if we're arguing the, we, we, we put that in there because I believe when she did make her oral reply to Dr. McPherson,

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uh... he was uh... i think that that that enough to understand that there was some conflict and some issue there uh... they're having a conversation she's making a reply did you know the actual specific now we i can't stand here and tell you of record that he knew the actual specifics uh... however in the context of her employment when you have a an issue like this where she had absenteeism over basically a two-month period of twenty two years

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And you're making an evaluation and he even stated himself on the record that he did not see a pattern here prior to this.

[00:07:08] Speaker 01:
Perhaps the reason lies elsewhere.

[00:07:11] Speaker 01:
There may be something going on in the respiratory therapy department with not only her, but maybe others.

[00:07:18] Speaker 00:
Mr. Smarto, this is Judge Raino.

[00:07:20] Speaker 00:
Hello, Judge.

[00:07:21] Speaker 00:
You brought up the issue of a pattern.

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And on three dates in September 2014 and then nine dates in October 2014, she failed to report for work and was found to not to be in approved status.

[00:07:36] Speaker 00:
Um, I don't, I don't understand why she, um, failed to go to work then.

[00:07:42] Speaker 00:
She just did not show up.

[00:07:43] Speaker 00:
Right.

[00:07:43] Speaker 01:
That's all I can tell you, your honor.

[00:07:46] Speaker 01:
Uh, and they did not reason.

[00:07:47] Speaker 01:
No, she didn't agree that through her union and she never made an appeal to the MSPB.

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on that issue.

[00:07:54] Speaker 00:
Why isn't this part of the pattern then?

[00:07:57] Speaker 00:
We have a worker, and you're holding her record up as exemplary and as rationale as to why she should not have been terminated.

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But we have a number of periods of times where she's just AWOL.

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And it turns out that her job is working with, she's a respiratory therapist.

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And she missed the event capture

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administrative tasks that she had in February 1 through March 12.

[00:08:27] Speaker 00:
All right.

[00:08:29] Speaker 00:
I don't, even if somebody has an exemplary record, when you're involved in this type of activity, the responsibility that she has and all, it could take just one day to undo everything in this type of situation.

[00:08:48] Speaker 00:
Wouldn't you agree?

[00:08:50] Speaker 01:
I don't know about one day.

[00:08:52] Speaker 01:
Let me just address two points you've made here.

[00:08:54] Speaker 00:
How about several days?

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How about 118 hours?

[00:08:57] Speaker 01:
It was around 113 hours, correct, in those days.

[00:09:03] Speaker 01:
We're not justifying the fact that that was a good thing.

[00:09:10] Speaker 01:
Obviously, the asymptotism is there.

[00:09:12] Speaker 01:
Those are the facts.

[00:09:13] Speaker 01:
There's nothing we can dispute in that regard.

[00:09:16] Speaker 01:
You mentioned that event capture.

[00:09:18] Speaker 01:
That's not testing.

[00:09:19] Speaker 01:
You mentioned that as being testing.

[00:09:21] Speaker 01:
That's just the computer input of the testing that you did in that particular day.

[00:09:26] Speaker 01:
You do that at the end of your shift, and you just input this information.

[00:09:29] Speaker 01:
It's pretty much clerical work, administrative work.

[00:09:32] Speaker 01:
It has nothing to do with patient care, all right?

[00:09:36] Speaker 01:
And in addition to that, I'm sorry.

[00:09:38] Speaker 05:
If she's supposed to perform a certain duty, and she doesn't perform it for a six-week period, and as I could tell from the record, the only thing she said without explanation was this was a security breach.

[00:09:51] Speaker 05:
but it's a pretty serious thing, is it not, if an employee refuses to perform a duty that's assigned for a six-week period without explanation?

[00:10:03] Speaker 01:
Well, it is serious.

[00:10:06] Speaker 01:
It is something, though, if you look at our appendix, in particular, appendix page 768, when this came to be a requirement for respiratory therapists in 2002, they

[00:10:21] Speaker 01:
If you did not perform this event capture, it would never be part of a serious disciplinary action.

[00:10:29] Speaker 01:
It would be maybe written counseling or verbal or written counseling.

[00:10:32] Speaker 01:
Even Dr. McPherson himself said she would never have been terminated had this just been a singular issue.

[00:10:38] Speaker 01:
The issue is, and he stated it specifically, she was fired for absenteeism.

[00:10:43] Speaker 01:
And that's really what our focus is here.

[00:10:45] Speaker 01:
If it was just event capture, we probably wouldn't be talking here today.

[00:10:49] Speaker 00:
Well, counsel, this is Judge Raina.

[00:10:51] Speaker 00:
I question what you just said, that this is our focus, because it seems to me that your argument up to this point in time is asking us to reweigh facts, and we can't do that.

[00:11:05] Speaker 00:
What exactly is your legal argument here?

[00:11:08] Speaker 01:
Well, I think we focus, again, as the judge said earlier, we're focusing primarily on determination and whether or not

[00:11:15] Speaker 01:
uh... when she had her oral reply and then eventually the evaluation by dr mcpherson deciding official whether or not the douglas factors were actually employed here really considered or whether this was a pro forma uh... performance here just to fire the girl and i know that there was a another official the proposing official before uh... dr mcpherson who just filled out this douglas factor checklist didn't really look at anything or consider anything in and set up the doctor mcpherson

[00:11:44] Speaker 01:
and and and now the only thing that was considered by him which was trying to split with a twenty two years i don't believe that everything was looked at in the context of a twenty two-year period certainly absenteeism is a problem we can see that more brief in effect efficiency of service uh... our position is that maybe there was a myth there were some mitigation that could have been had here in addition to that considering her length of service and her record overall

[00:12:13] Speaker 01:
she could have perhaps there could have been another form of discipline short of termination.

[00:12:20] Speaker 05:
And among the things that the deciding official said was that really rehabilitation was not a realistic option.

[00:12:27] Speaker 05:
He thought, or she thought because the prior discipline didn't work.

[00:12:32] Speaker 05:
That's a pretty standard and well accepted argument in the context of Douglas factors.

[00:12:40] Speaker 05:
Is it not?

[00:12:41] Speaker 01:
well it's it's it's it's a standard now she was suspended for absenteeism one-time and that was for fourteen days this particular issue on the second a wall issue which was which was one day there's an actual dispute over whether or not she was actually a wall that day she asked to be uh... believed of her over tour that day uh... she had an issue she fell there wasn't clement whether she would call them i'm sorry here

[00:13:11] Speaker 04:
Yeah, this is Joseph.

[00:13:12] Speaker 04:
So we're aware of those facts.

[00:13:14] Speaker 04:
But here, you've got a finding that it was equal.

[00:13:17] Speaker 04:
And that's not disputed on appeal.

[00:13:19] Speaker 04:
So I think that that's not something that we can read away.

[00:13:26] Speaker 04:
Isn't the standard here just whether the penalty of removal was within a range of reasonableness?

[00:13:33] Speaker 04:
Isn't that what we're supposed to be looking at?

[00:13:35] Speaker 04:
Yes.

[00:13:36] Speaker 04:
OK.

[00:13:37] Speaker 04:
So why isn't it within the range of reasonableness?

[00:13:40] Speaker 01:
our position is that really aren't uh... i'm sorry i'm sorry i don't really see that argument in your briefing i think your argument is more that there are certain factors that should have been more developed but uh... go ahead they why we believe that we believe there are factors that should have been more developed which would have probably hopefully we believe lead to something left in termination uh... we don't believe it was reasonable because of her length of service and her record uh...

[00:14:10] Speaker 05:
I think I heard the bell.

[00:14:13] Speaker 05:
Michael, did we hear the bell a few minutes ago?

[00:14:16] Speaker 02:
Yes.

[00:14:16] Speaker 02:
Yes, you did, Your Honor.

[00:14:17] Speaker 05:
Okay.

[00:14:18] Speaker 05:
Why don't we turn to the other side and we'll retain your rebuttal time.

[00:14:22] Speaker 05:
Okay.

[00:14:22] Speaker 05:
Thank you.

[00:14:23] Speaker 05:
Thank you.

[00:14:25] Speaker 05:
Ms.

[00:14:25] Speaker 05:
Rhodes, are you available?

[00:14:27] Speaker 05:
Are you here?

[00:14:28] Speaker 03:
Thank you, Your Honors.

[00:14:30] Speaker 03:
Can you all hear me?

[00:14:31] Speaker 03:
Yes.

[00:14:32] Speaker 00:
Yes.

[00:14:34] Speaker 03:
Thank you.

[00:14:34] Speaker 03:
May I please the court?

[00:14:36] Speaker 03:
Renewal here was a proper penalty and Ms.

[00:14:39] Speaker 03:
Paulette has not shown any error in the MSPB's decision.

[00:14:43] Speaker 03:
Here the deciding official properly considered the relevant factors.

[00:14:47] Speaker 03:
He considered her length of service.

[00:14:49] Speaker 03:
He acknowledged that he did not have a concern about her ability to do her job if she were to show up, but his concern was that she had

[00:15:00] Speaker 03:
shown a pattern of not showing up, of being AWOL and that he was concerned about whether or not she would show up to her job.

[00:15:08] Speaker 03:
And he also noted that AWOL was particularly serious because of her position and that it affected patient care.

[00:15:14] Speaker 03:
In addition, to the extent that Ms.

[00:15:16] Speaker 03:
Pollard is contending that additional investigation should have taken place into factors that she considered mitigating the burden was on her to

[00:15:28] Speaker 03:
raised that those arguments and present that evidence as this court has recognized.

[00:15:34] Speaker 03:
Given that there was no error here and that Mr. Moose Pollard is asking the court to reweigh the evidence, we ask that the decision be affirmed and if the court has any questions I would be happy to answer those.

[00:15:48] Speaker 05:
Let me ask you about going back into the facts that your friend was talking about.

[00:15:53] Speaker 05:
Clearly there's nobody that's disputing that in 2014

[00:15:57] Speaker 05:
She was absent on AWOL for a substantial amount of time, and she got a 14-day suspension, which I assume is what the agency concluded was the right penalty.

[00:16:11] Speaker 05:
All that happened after that was one day.

[00:16:16] Speaker 05:
And you're right.

[00:16:16] Speaker 05:
The one day the agency is right that she was AWOL, but it wasn't a clear cut.

[00:16:22] Speaker 05:
They just didn't know why.

[00:16:23] Speaker 05:
She just didn't show up.

[00:16:24] Speaker 05:
There was a bit of an explanation, a disagreement.

[00:16:27] Speaker 05:
You get to, you win on that, but it was one day and it seems like a different kind of extraordinary circumstance.

[00:16:36] Speaker 05:
So why under those circumstances, just the fact that she was AWOL for 2014, where she was punished, this one day where there was some dispute on what the circumstances were, it seems a little unique.

[00:16:52] Speaker 05:
Why is that enough to trigger a removal?

[00:16:56] Speaker 03:
Thank you, Your Honor.

[00:16:57] Speaker 03:
I think that there are two things here.

[00:16:58] Speaker 03:
First, as the court recognized previously, that AWOL was not the only charge.

[00:17:03] Speaker 03:
So while the failure to follow supervisory instructions was not considered to be as serious of a charge, it was something that was charged and proven.

[00:17:16] Speaker 03:
But as for the one day of AWOL, the facts here about whether there was a disagreement and whether or not she was

[00:17:26] Speaker 03:
requesting sick leave for appropriate reasons were mostly only developed at the MSPB's hearing.

[00:17:34] Speaker 03:
So, Ms.

[00:17:35] Speaker 03:
Pollett was given an opportunity after she was told that she could not take sick leave for inclement weather to change her leave request to annual leave

[00:17:47] Speaker 03:
And not only did she not do that, but she did not create any kind of record at that time that documented any dispute with the decision that she was not permitted to take sick leave.

[00:18:00] Speaker 03:
And she did not raise that to the deciding official.

[00:18:03] Speaker 05:
I haven't been a bureaucrat in a long time.

[00:18:06] Speaker 05:
If she had said, okay, put me down for eight hours of annual leave, would there have been no blemish or no mark on her record with respect to this AWOL stuff?

[00:18:18] Speaker 03:
With respect to the charge, the AWOL charge, the one-day charge for which she was removed, that's my understanding of the record, is that she had the opportunity to correct it, and she did not do that.

[00:18:32] Speaker 03:
And because she did not do that, she was marked AWOL if she had taken annulities as she had been invited to do by her... Well, I think the record is a little bit unclear as to whether Mr. Schrecker was her supervisor, but he did direct her that she should

[00:18:48] Speaker 03:
she could change it to annual leave, there would be no AWOL charge because she would have been on a proper leave status.

[00:18:58] Speaker 00:
This is Judge Wayna.

[00:18:59] Speaker 00:
What does that do to the argument that she was in a position that required her to be there and it involved the safety of the patients at some point?

[00:19:11] Speaker 00:
What is it better then if she could have just simply said, I'm going to take annual leave?

[00:19:15] Speaker 00:
And those eight days would have been excused.

[00:19:21] Speaker 03:
Well, I think that it doesn't really reflect on that except that she did not, she was AWOL in a position that impacts patient care, but annual leave is permitted for things like, there are times when

[00:19:49] Speaker 03:
when annual leave can be approved on short notice.

[00:19:52] Speaker 03:
I'm not sure what the agency's policies here are, but there can be times when you can basically ask for annual leave at the beginning of the shift because of your inability to get into work.

[00:20:02] Speaker 03:
But again, she was invited to take that leave and did not do so.

[00:20:08] Speaker 05:
And that's, you're just talking about the January 29 AWOL, the one day.

[00:20:13] Speaker 05:
You're not talking about the 2014 substantial period of AWOL, correct?

[00:20:19] Speaker 03:
That's right.

[00:20:20] Speaker 03:
And as Mr. Smarto indicated, there was no challenge to those charges and there's really no development in the record as to why she was AWOL so frequently in September and October of 2014, but within just a few weeks of returning from her suspension, she was AWOL again.

[00:20:52] Speaker 03:
Are there any further questions from the court?

[00:20:54] Speaker 05:
Well, let me just ask you about the event capture, because Mr. Smarto's, one of his responses on that was that at least sometime previously, employees were easily, readily forgiven for not doing it.

[00:21:09] Speaker 05:
And under a normal Douglas factor analysis, comparable penalties for the same conduct is a factor that is evaluated.

[00:21:19] Speaker 05:
Was that aspect developed in this case?

[00:21:22] Speaker 05:
saying that in other cases employees have refused, as she did, to do this event capture duty and were not disciplined at all?

[00:21:34] Speaker 03:
No, that was not developed.

[00:21:35] Speaker 03:
And again, here I think that it's important to remember that the deciding official and then the MSPB were looking at both charges.

[00:21:44] Speaker 03:
And what the deciding official explained is that he considered to be the AWOL, particularly as she had shown,

[00:21:52] Speaker 03:
shown past AWOL behavior to be more serious, but he also did consider the event capture to be important because, as in his testimony at Appendix 1296, he says, the absenteeism was the most important factor, but at the same time, I could see that she was behaving in a way that wasn't compliant with the typical rules of the ICU or her department.

[00:22:17] Speaker 03:
And so, again, while this may not

[00:22:22] Speaker 03:
If the failure to follow supervisory instructions regarding event capture was the only charge, I think that there's no disagreement here that the agency likely would not have recommended removal.

[00:22:37] Speaker 03:
It was the combination of the charges that led to the recommendation and the ultimate removal.

[00:22:51] Speaker 05:
Let me ask my colleagues if they have any further questions.

[00:22:56] Speaker 04:
No further questions for me.

[00:23:00] Speaker 05:
Thank you, Your Honor.

[00:23:01] Speaker 05:
Thank you.

[00:23:02] Speaker 05:
Mr. Smarto, you're up again for your rebuttal time.

[00:23:14] Speaker 02:
I'm sorry.

[00:23:15] Speaker 02:
It appears Mr. Smarto may have muted himself.

[00:23:16] Speaker 02:
I have to unmute him one second here, Your Honor.

[00:23:18] Speaker 02:
Oh, okay.

[00:23:23] Speaker 01:
Can everyone hear me now?

[00:23:25] Speaker 02:
Yes.

[00:23:27] Speaker 01:
Thank you.

[00:23:28] Speaker 01:
Just briefly, I want to go back very, very quickly to this event capture.

[00:23:34] Speaker 01:
Even the council for VA at the hearing conceded that the event capture was not a motivating factor in this termination, that it primarily dealt with, well, assenteeism wasn't a reason.

[00:23:49] Speaker 01:
Pointing out that January 29th,

[00:23:52] Speaker 01:
uh... a wall which triggered the determination uh... clearly that she could have and they asked her to input uh... in their system which is how they they call off work they get on the computer they put it in they could take a really poor sick leave or whatever they have coming to them uh... she was actually given the day they were worried about her safety you can take the day uh... which can put in for sick leave if you put in for annually if you're good she never did that for some reason and i don't have an explanation to the court i i can't give you an explanation as to why she did not do that

[00:24:22] Speaker 05:
whether she just forgot about it was it wasn't a problem uh... that's the only thing i can offer uh... one of the issue i'm talking to the i'm sorry she had an opportunity to make kept make this offer in the connection with the proceedings in this case is that what you know the deciding official that

[00:24:41] Speaker 05:
He was just confused.

[00:24:42] Speaker 05:
She thought it would automatically be annual leave with what you just told us, what she explained to the people of the agency.

[00:24:49] Speaker 01:
Right.

[00:24:49] Speaker 01:
I believe she thought it was just going to be annual leave, but she evidently had to physically put in for this.

[00:24:55] Speaker 05:
I'm not asking what she thought.

[00:24:56] Speaker 01:
I'm asking what she explained to the agency as to why this happened.

[00:25:02] Speaker 01:
That particular day, what she explained to the agency, the overall reason why she wasn't coming in or why she didn't put in for annual leave?

[00:25:09] Speaker 01:
Why she didn't put in for annual leave.

[00:25:11] Speaker 01:
I believe the record reflects that she told Dr. McPherson in her oral reply that she thought it was taken care of.

[00:25:20] Speaker 01:
Where in the record does it say that?

[00:25:23] Speaker 01:
I don't.

[00:25:23] Speaker 01:
I thought I read that, Judge.

[00:25:25] Speaker 01:
I have the appendix up in front of me now.

[00:25:28] Speaker 01:
I don't know whether she said that to him.

[00:25:31] Speaker 01:
I mean, in her testimony or whether he said that.

[00:25:35] Speaker 01:
And I don't know if I have it in my brief.

[00:25:36] Speaker 01:
I believe that she just thought it was going to happen.

[00:25:39] Speaker 01:
She didn't have to do it.

[00:25:40] Speaker 01:
And unfortunately, her second-tier supervisor, Schweikert, I believe advised her that she had to physically do this and put it in on her own.

[00:25:51] Speaker 01:
And she did not do that.

[00:25:53] Speaker 04:
Yes.

[00:25:53] Speaker 04:
You might want to look at page JA 736.

[00:25:55] Speaker 04:
That might be what you're looking for.

[00:26:03] Speaker 01:
OK.

[00:26:03] Speaker 01:
736.

[00:26:15] Speaker 01:
Right, okay.

[00:26:17] Speaker 01:
That is actually the memo to, I'm sorry?

[00:26:25] Speaker 04:
Go ahead.

[00:26:26] Speaker 01:
It looks like that is the memo relative to the, that triggered the final disciplinary course for her.

[00:26:38] Speaker 04:
Okay, I had the wrong space.

[00:26:41] Speaker 04:
Somewhere in here you think there's some testimony where she says,

[00:26:45] Speaker 04:
why she didn't change the time to a different category.

[00:26:51] Speaker 01:
I seem to recall that, Your Honor.

[00:26:52] Speaker 01:
I don't have recall that now I have the appendix in front of me, and I'm not going to be able in my five minutes.

[00:26:57] Speaker 01:
There are less than five minutes to be able to get that to you.

[00:27:01] Speaker 01:
My being in the hearing, I believe that's what she thought, and certainly it was offered to her.

[00:27:07] Speaker 01:
but she was i could you know i'm not going to deny that she was told that she physically had to make this particular change annually from sick leave she did not do that if she would have done that she probably would not have not been terminated at that particular point in time so uh... that i think it comes down to that and again she was initially told to take the day off but the direct supervisor told the second-tier supervisor to call her back and tell her

[00:27:34] Speaker 01:
She characterized it as sick leave for inclement weather and she can't do it.

[00:27:38] Speaker 01:
And even though it's been done, it has been done, the testimony of the supervisor said that the employees try to skirt the weather conditions by using, you know, sick leave and annual leave.

[00:27:49] Speaker 01:
We know what's going on.

[00:27:51] Speaker 01:
You know, we sort of don't do anything about it.

[00:27:53] Speaker 01:
But that's all I can offer at that point.

[00:27:56] Speaker 01:
And again, yes, she could have changed it.

[00:27:59] Speaker 05:
Okay.

[00:27:59] Speaker 05:
Final comment because I think the time has expired.

[00:28:03] Speaker 05:
Final statement?

[00:28:07] Speaker 01:
uh... for for me i'm sorry yet uh... you could you get uh... i apologize uh... just uh... not not much more to add other than that we have uh... twenty two-year employee that was terminated for well they've got absences unauthorized absences never had a disciplinary problem prior to two thousand twelve she trained people she she was receiving awards throughout her career uh...

[00:28:34] Speaker 01:
We believe that this was unreasonable under the circumstances, that there was mitigating factors and also that some other form of discipline short of termination could have very easily been meted out to her.

[00:28:48] Speaker 01:
And I thank everybody for their time and I hope everybody's well and stays safe.

[00:28:51] Speaker 05:
Thank you.

[00:28:52] Speaker 05:
Same to you all.

[00:28:53] Speaker 05:
Thank both sides.

[00:28:54] Speaker 05:
And the case is submitted.

[00:28:56] Speaker ?:
Thanks.