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

[00:00:01] Speaker 01:
Again, I call case number 20-1507, Moreno against Department of the Interior.

[00:00:07] Speaker 01:
Ms.

[00:00:08] Speaker 01:
Rosenthal.

[00:00:09] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:00:12] Speaker 00:
My name is Danielle Rosenthal for Petitioner Ms.

[00:00:14] Speaker 00:
Leticia Moreno.

[00:00:15] Speaker 00:
Despite an 18-year, unblemished career with the government, Ms.

[00:00:19] Speaker 00:
Moreno was charged and removed for AWOL, where her only conduct was being absent due to her serious and undisputed medical condition.

[00:00:27] Speaker 00:
And as she testified, having that disciplinary charge in her employment record has had collateral damage to her.

[00:00:33] Speaker 00:
It's extended beyond the loss of her job and has made it difficult for her to get a new job.

[00:00:38] Speaker 00:
The board committed several errors in sustaining the AWOL charge and removal, any of which warrant a reversal of vacatur.

[00:00:45] Speaker 00:
Given my time, I'd like to focus on two of these errors.

[00:00:48] Speaker 00:
The legal error in removing for AWOL where the absences were medically necessary.

[00:00:53] Speaker 00:
And even if the AWOL charge were proper, the board's abuse of discretion in sustaining the penalty where it ignored mitigating evidence of her medical condition and failed to conduct an independent balance of the Douglas factors with a focus on only the sustained charge.

[00:01:08] Speaker 02:
Counselor, this is Judge Arena.

[00:01:11] Speaker 02:
It seems to me that at some point in the case that it's clear

[00:01:16] Speaker 02:
or at least questionable, but it's almost cleared, I believe, that Ms.

[00:01:22] Speaker 02:
Moreno's not going to come back to work.

[00:01:25] Speaker 02:
Is that accurate?

[00:01:29] Speaker 00:
Ms.

[00:01:29] Speaker 00:
Moreno did come back to work.

[00:01:31] Speaker 00:
She came back to work on June 11th.

[00:01:34] Speaker 00:
So we would contend that that was not clear.

[00:01:36] Speaker 00:
And in fact, the medical notes beginning in February through the time that she came back to work,

[00:01:45] Speaker 00:
said that she was temporarily incapacitated and that she would return to work as soon as she could.

[00:01:51] Speaker 04:
This is Judge Stoll.

[00:01:53] Speaker 04:
Wasn't there at least one note that said it's unclear when she would be able to come back?

[00:02:00] Speaker 04:
And I can't remember the specific date of that, but I want to say maybe it was April.

[00:02:04] Speaker 04:
There was at least one medical note that said that.

[00:02:09] Speaker 04:
Do you recall that or no?

[00:02:11] Speaker 00:
Yes, I believe you're referring to the January note where it was less than clear, but the note subsequent to the January note made clear that she was on a temporarily leave of absence and that she would be able to return.

[00:02:29] Speaker 02:
She did return to work for three days, but then she was absent again after that for an extended time, correct?

[00:02:37] Speaker 00:
She returned to work, I believe you're referring to October of 2017, and then she came back, and then she was out from November through the following June.

[00:02:56] Speaker 01:
When she came back in June, that was part-time, if I recall correctly, is that right?

[00:03:04] Speaker 00:
That is correct.

[00:03:07] Speaker 00:
And, you know, whether these absences were extended or not, this court made clear in Schulz that where a person cannot work solely for health reasons, the agency cannot discipline that person by removing for AWOL.

[00:03:24] Speaker 00:
I note that in Schulz, the agency knew that Ms.

[00:03:26] Speaker 00:
Schulz could not work for health reasons and in response to leave requests, gave her the option to resign, return to work, or face AWOL.

[00:03:33] Speaker 00:
She resigned and this court held that the resignation was coerced because the agency threatened her with a disciplinary action it knew it could not sustain that was removal for AWOL where she couldn't work due to her health.

[00:03:45] Speaker 00:
Here, although the agency didn't coerce Ms.

[00:03:48] Speaker 00:
Marino to resign, it did just what Shultz says is improper.

[00:03:52] Speaker 00:
That is, it gave her the impossible choice of returning to work when it knew she couldn't work for health reasons and disciplined her when she didn't return to work.

[00:04:01] Speaker 00:
And that discipline was improper.

[00:04:03] Speaker 00:
I note that this court's adults endorse the Schulz principle that employee cannot be disciplined for medically necessary absences in subsequent cases, and numerous board decisions have squarely applied Schulz to overturn removal for AWOL.

[00:04:20] Speaker 00:
As Schulz makes clear, an agency, of course, still has discretion to remove an employee who can't work due to health reasons by initiating a non-disciplinary action.

[00:04:30] Speaker 00:
But an agency should not discipline and penalize the employee who cannot work for health reasons.

[00:04:36] Speaker 00:
And that is what removal for AWOL does.

[00:04:39] Speaker 00:
And as Marina has testified, that has had collateral damage to her.

[00:04:45] Speaker 00:
But what's the collateral damage?

[00:04:49] Speaker 00:
As she's testified in APPX 481, she's had a difficult time getting subsequent employment because of that disciplinary AWOL charge.

[00:04:59] Speaker 00:
in a permanent employment record.

[00:05:05] Speaker 04:
This is Judge Stoll.

[00:05:07] Speaker 04:
When we're looking at sustaining or whether or not there's substantial evidence to sustain the six weeks of AWOL, we are able to consider the history that preceded that, right?

[00:05:18] Speaker 04:
Including all of the different doctor's notes and that can be considered, right?

[00:05:27] Speaker 00:
Well, is that assuming that the AWOL charge, I guess, is legally proper?

[00:05:32] Speaker 00:
Perhaps, although I don't see anywhere in the Douglas factors that would take into account previous absences.

[00:05:42] Speaker 04:
I understand.

[00:05:44] Speaker 04:
My question was about sustaining the charge, not about the Douglas factor.

[00:05:48] Speaker 04:
I understand your Douglas factor argument to be that the board didn't grapple with the question of whether the maximum penalty of removal was proper after six weeks of AWOL when only one of the charges was sustained, right?

[00:06:06] Speaker 04:
That there was some independent Douglas factor analysis that had to be done because

[00:06:12] Speaker 04:
only one of the charges was sustained.

[00:06:15] Speaker 04:
Isn't that your argument?

[00:06:16] Speaker 00:
That's correct.

[00:06:19] Speaker 00:
Yes.

[00:06:21] Speaker 00:
But turning back to if we're just talking about the AWOL charge, Schulz has made clear that employees shouldn't be disciplined by being removed for AWOL where the absences are due solely to an undisputed medical condition.

[00:06:35] Speaker 00:
So whether the absences are 30 days or

[00:06:38] Speaker 00:
60 days or longer, the point of Shultz is that an employee shouldn't get that disciplinary AWOL and removal for AWOL.

[00:06:47] Speaker 02:
But we've also, this Court has also held that an agency is not required to indefinitely retain an employee who cannot work due to poor health.

[00:06:59] Speaker 00:
That's correct.

[00:07:00] Speaker 00:
And as Shultz makes clear,

[00:07:02] Speaker 00:
In that situation, the proper procedure is to initiate a non-disciplinary action.

[00:07:08] Speaker 02:
But Shultz is a coercion case.

[00:07:10] Speaker 02:
This is not.

[00:07:14] Speaker 00:
Right.

[00:07:14] Speaker 00:
Although Shultz concludes that there is coercion, the basis for that conclusion is that the agency threatened an action it knew it could not sustain, and that action was

[00:07:26] Speaker 00:
a removal for AWOL where Ms.

[00:07:29] Speaker 00:
Schultz had an undisputed medical condition.

[00:07:32] Speaker 00:
And that principle that's mentioned three times in Schultz applies here.

[00:07:37] Speaker 00:
And the idea is that employees should not be disciplined if she cannot work solely due to another health condition.

[00:07:45] Speaker 02:
Well, here's a problem I have.

[00:07:48] Speaker 02:
There's no dispute that Ms.

[00:07:49] Speaker 02:
Moreno was AWOL for about 240 hours from April 30th to June 11th.

[00:07:56] Speaker 02:
We have contradictory notes, some that say that she can come back to work, others say that she cannot.

[00:08:04] Speaker 02:
And there's even a document that indicates that her problem is indefinite.

[00:08:12] Speaker 02:
And the agency has made adjustments for her, let her work remotely, set up facilities for her to work, and none of that seemed to

[00:08:24] Speaker 02:
to help her, you know, and her medical condition.

[00:08:27] Speaker 02:
And it gets me back to the question about the agency having to indefinitely retain an employee who's not coming to work.

[00:08:37] Speaker 02:
At some point there is a, there has to be, it seems to me, a line that both parties cross

[00:08:47] Speaker 00:
That's correct.

[00:08:49] Speaker 00:
And as Shultz makes clear, as well as other cases, that an agency, of course, still has discretion to remove an employee in that circumstance.

[00:08:58] Speaker 00:
But the proper procedure is to initiate a non-disciplinary action.

[00:09:04] Speaker 00:
So the error here was in charging and removing solely for AWOL.

[00:09:08] Speaker 02:
Are you saying a non-disciplinary action would have resulted in a different result?

[00:09:16] Speaker 00:
Potentially, yes.

[00:09:17] Speaker 00:
Yes.

[00:09:18] Speaker 00:
And it certainly wouldn't have resulted in a result that has an employee's and permanent employment record a disciplinary action.

[00:09:30] Speaker 02:
Is that the real problem here that she's carrying around this AWOL on her record?

[00:09:41] Speaker 00:
Yes.

[00:09:41] Speaker 00:
That is a problem.

[00:09:43] Speaker 00:
And that's what, you know, Schultz

[00:09:46] Speaker 00:
says cannot happen.

[00:09:47] Speaker 04:
Distinguishing Schultz.

[00:09:52] Speaker 04:
I mean, one argument that's made is that Schultz can be distinguished because here, the agency tried to work with Ms.

[00:09:59] Speaker 04:
Moreno for quite some time before giving her, you know, approved medical leave before having to resolve to demanding that she return.

[00:10:13] Speaker 00:
Well, the problem with that, though, and alternative sort of accommodations if provided is that assumes that her absences weren't medically necessitated because if they were, you know, alternative accommodations really doesn't make sense.

[00:10:31] Speaker 00:
And here, and the agency did not dispute that event.

[00:10:34] Speaker 00:
And in fact, the board at APPX 9 says, I find no dispute that the appellant was incapacitated for duty.

[00:10:42] Speaker 00:
for the dates that the agency charged the appellant with AWOL.

[00:10:45] Speaker 04:
So at the time... Presumably the outcome in this case wouldn't be different if Ms.

[00:10:51] Speaker 04:
Moreno had a more, a physical ailment like cancer, for example, where they kept on trying to treat it, but they weren't able to and they kept on saying, we think we're going to be able to treat this and she'll be able to come back to work, but it turns out that she can't.

[00:11:06] Speaker 04:
They just haven't been able to

[00:11:09] Speaker 04:
cure the cancer yet or put her in remission enough that she was able to return to work.

[00:11:13] Speaker 04:
You think that this case should have no different of an outcome here just because it's a mental illness as compared to cancer, right?

[00:11:22] Speaker 00:
That is correct, Your Honor.

[00:11:25] Speaker 00:
Right.

[00:11:26] Speaker 00:
And that's where joiner is improper that, you know, whether the medical condition, the end of it is foreseeable or not shouldn't be the deciding factor of whether the employee is disciplined where, you know, the absences are solely due to the medical condition.

[00:11:48] Speaker 02:
Is she ready to come back to work?

[00:11:50] Speaker 02:
Is that what her doctor is saying?

[00:11:55] Speaker 00:
She was at the time.

[00:11:57] Speaker 00:
Candidly, I'm not sure right now.

[00:11:59] Speaker 00:
I know after that, after she was removed, she tried to get subsequent employment, and she had a hard time doing that with the AWOL charge in her record.

[00:12:09] Speaker 00:
So if you're honored to have no further questions, I'd like to move on to the penalty determination.

[00:12:19] Speaker 00:
All right.

[00:12:22] Speaker 00:
Take another moment or two on the penalty.

[00:12:25] Speaker 00:
Great, thank you.

[00:12:27] Speaker 00:
So even if the AWOL charge were found to be proper, the board abused its discretion in affirming the penalty.

[00:12:33] Speaker 00:
And there are errors in the board's decision.

[00:12:36] Speaker 00:
First, the board did not consider or give any weight to her medical condition as mitigating.

[00:12:42] Speaker 00:
The board's decision doesn't even mention much less, you know, give any weight to this, her medical condition as mitigating.

[00:12:50] Speaker 00:
And under this court's precedent in Bell,

[00:12:52] Speaker 00:
where there's evidence relevant as here to mitigating circumstances that must be considered and given weight.

[00:12:59] Speaker 00:
Also, where all the charges were not sustained, the board must independently balance the Douglas Factors under the lens of only the sustained charge.

[00:13:09] Speaker 00:
Here, the board didn't do that.

[00:13:10] Speaker 00:
Instead, rather than discounting the absences related to the unsustained excessive absences charge,

[00:13:17] Speaker 00:
The board's decision found those absences aggravating.

[00:13:21] Speaker 00:
Therefore, the board used the unsustaining charge against Ms.

[00:13:25] Speaker 00:
Marino, which is the opposite of what it's supposed to do.

[00:13:28] Speaker 00:
And finally, the board also found the potential for rehabilitation aggravating without considering her evidence of her return to work.

[00:13:36] Speaker 00:
And also, as stated in Bell, evidence of return to work must be considered as rehabilitation.

[00:13:44] Speaker 00:
So for these errors, we believe warrant reversal or vacature.

[00:13:50] Speaker 00:
OK.

[00:13:52] Speaker 01:
Thank you.

[00:13:52] Speaker 01:
Let's hear from the other side.

[00:13:56] Speaker 01:
Ms.

[00:13:56] Speaker 01:
Kristyniak.

[00:13:58] Speaker 03:
Thank you, Your Honor.

[00:14:00] Speaker 03:
The agency here worked with Ms.

[00:14:02] Speaker 03:
Moreno as much as it could.

[00:14:04] Speaker 03:
However, as of June 2018, Ms.

[00:14:07] Speaker 03:
Moreno had performed her job only part time for two weeks the previous October.

[00:14:14] Speaker 03:
As an initial matter, Ms.

[00:14:15] Speaker 03:
Moreno is essentially arguing for a bright line rule where if there is a medical reason for an agency's absence, an agency is barred from ever denying a leave without pay request.

[00:14:25] Speaker 03:
The Shultz case, as Judge Raina indicated in one of his questions, was based on a question of whether or not the board had jurisdiction over an appeal, whether or not there was a coerced retirement.

[00:14:37] Speaker 03:
I think importantly in Shultz, Ms.

[00:14:39] Speaker 03:
Shultz had available leave that presumably would have covered the amount of time that she was asking to take off.

[00:14:45] Speaker 03:
So there in Shultz, we had a medical documentation indicating that she needed to take leave.

[00:14:49] Speaker 03:
She had available leave that would cover it and the agency denied her request.

[00:14:54] Speaker 04:
Counsel, this is Judge Stoll.

[00:14:56] Speaker 04:
Is there a mechanism available that is non-disciplinary for situations like this where somebody has a medical ailment that's undisputed?

[00:15:07] Speaker 03:
To my knowledge, within the agency, not necessarily, Your Honor, because the question really does come down to if the denial of leave without pay is reasonable.

[00:15:17] Speaker 03:
And I would refer the court specifically to your decision in Campana in 1989, which we did cite, where this court stated the authorization of leave without pay where medical excuses are involved is generally a matter of administrative discretion, notwithstanding the agency's instructions here.

[00:15:31] Speaker 03:
However, an agency's denial of leave without pay must be reasonable under this.

[00:15:35] Speaker 04:
So you're suggesting that there's only like a binary option.

[00:15:38] Speaker 04:
You either give the person leave without pay or you charge them with AWOL and then you can discipline them.

[00:15:45] Speaker 04:
There isn't some in between where you say, right now you're not able to work and so we can't keep you on the rolls and so you're going to get, we're going to remove you but it's for a non, it's not a disciplinary action.

[00:16:00] Speaker 04:
There's nothing like that.

[00:16:01] Speaker 03:
To my understanding, there is not, Your Honor.

[00:16:03] Speaker 03:
And it really does come down to if Ms.

[00:16:05] Speaker 03:
Moreno no longer had any accrued leave, which is obviously not contested, the agency advanced her six weeks of paid sick leave, the maximum it was able to do under regulation.

[00:16:13] Speaker 03:
The agency gave her 11 weeks of leave without pay.

[00:16:16] Speaker 03:
At that point in time, if she's not going to return to work and the agency is not going to extend further leave without pay, there is really no option but to code her as absent without leave, as AWOL.

[00:16:26] Speaker 03:
My understanding is there's not another middle ground within the agency's capacity.

[00:16:31] Speaker 03:
And I've not heard of that from any other agency.

[00:16:33] Speaker 03:
So, and I do, again, I do want to emphasize the Campana case because there it was a very similar situation where an employee for a variety of medical reasons that were never questioned by the agency received 401 hours of leave without pay.

[00:16:47] Speaker 03:
And then he was asked, and again, for similar medical reasons, submitted medical documentation, which was never questioned by the agency or the board as far as veracity or his incapacitation, and argued to this court that, and this is from page 291 in that opinion, the court wrote, Campana, relying on the court's decision in waived from 87, contends that because he was incapacitated for the periods in question, his leave must be classified as leave without pay.

[00:17:12] Speaker 03:
That contention is without merit.

[00:17:13] Speaker 03:
So this court has already held that it is not a requirement that if an employee presents a medical reason for their absence, the agency is absolutely required to approve any leave without pay request, no matter the duration of it.

[00:17:26] Speaker 04:
Counsel, can I ask you about the Douglas Factors for a minute?

[00:17:30] Speaker 04:
Certainly.

[00:17:31] Speaker 04:
So our cases suggest, like for example, I'm thinking of LeChance and Tartaglia,

[00:17:38] Speaker 04:
They state that where the board does not sustain the full PEMP charges, then the board must independently grapple with the Douglas factors and assess whether the maximum penalty of removal was proper for the charge that sustained.

[00:17:58] Speaker 04:
And I don't, I'm having a hard time seeing where the board did that.

[00:18:02] Speaker 04:
When I look at the board's analysis, it seems that they're just referring to the agency's analysis.

[00:18:08] Speaker 04:
And maybe there's one conclusory sentence.

[00:18:11] Speaker 04:
There's not even a single suggestion of mitigation or based on factor 11, which would be the medical reasons.

[00:18:20] Speaker 04:
And I just, so I would like you to address that and point me to where in the board's opinion I should see that it addressed the Douglas factors in an independent analysis from the agency.

[00:18:34] Speaker 03:
Certainly, Your Honor.

[00:18:36] Speaker 03:
We would refer the court to appendix at page 10.

[00:18:38] Speaker 03:
Well, as an initial matter, plaintiff's or petitioner's reply brief asserts that any discussion of this matter that is outside of the penalty discussion at the very end of the opinion should not be considered as not part of the board's analysis.

[00:18:50] Speaker 03:
As this court held in Robinson in 2019, that is certainly not the case.

[00:18:53] Speaker 03:
The entirety of the opinion may be read in whole, and the entirety is the board's analysis.

[00:18:58] Speaker 03:
So we would specifically refer the court to the board's

[00:19:01] Speaker 03:
analysis at Appendix Page 10, where it considered the extent of the incapacitation and the impact on the reasonableness of the agency's actions.

[00:19:08] Speaker 04:
Can you slow down for a minute?

[00:19:10] Speaker 04:
You're going a little fast.

[00:19:11] Speaker 04:
I want to make sure I can follow what you're saying.

[00:19:14] Speaker 03:
Absolutely, Your Honor, and I do apologize for that.

[00:19:17] Speaker 03:
So at Page 10 of the appendix, the administrative judge noted, the appellant has contended that it is not for the agency to determine how many days are necessary for my recovery.

[00:19:28] Speaker 03:
I find those conventions misapprehend the agency's point that when it began to deny appellant leave and place her in an AWOL status, it had substantial reason to doubt her medical provider's lukewarm assurances that she could return to work in the capacity that the agency needed her.

[00:19:41] Speaker 04:
Similarly, our case... Which Douglas Factor do you think he's analyzing here?

[00:19:45] Speaker 03:
And that was with regard to the mitigation, the idea that the

[00:19:50] Speaker 03:
the presence of the medical condition was an intricate part of the analysis, and specifically in the ball case.

[00:19:58] Speaker 04:
So in other words, the mitigation, the discussion of the mitigation factor of her medical ailment is, well, it looks like she's never going to be able to return.

[00:20:07] Speaker 03:
Beyond that, Your Honor, I would also refer the court to the page 16 of the decision where

[00:20:11] Speaker 03:
The AJ stated, if anything, the facts in this case lead me to believe that the agency probably afforded the appellant greater latitude with her request because of the medical nature of her request.

[00:20:21] Speaker 03:
And also, there is another finding where the administrative judge notes that the agency likely could have marked her as AWOL as of April 9th.

[00:20:28] Speaker 03:
However, they were being conservative in the approach that they were taking to her and marked her as AWOL instead on April 30th.

[00:20:36] Speaker 03:
And so, we do think that those analyses

[00:20:38] Speaker 03:
are an analysis of the extent of the medical condition and the impact on the agency's actions and what they chose.

[00:20:45] Speaker 04:
And I want to make sure I understand the last point you made was that in considering whether her medical condition was mitigating or not, they considered that the agency could have found her, charged her with AWOL as early as April 9th.

[00:21:01] Speaker 04:
That relates to her medical ailment.

[00:21:04] Speaker 03:
We think that this statement indicating that finding that the agency treated Ms.

[00:21:10] Speaker 03:
Moreno with more forbearance and more leniency because of the medical nature of her ailments and of her reasons for not being able to perform her job indicate that there was an analysis, there was a mitigation of that factor.

[00:21:25] Speaker 04:
But I'm asking you where the board considered her medical condition

[00:21:35] Speaker 04:
you know, as, you know, under factor 11 of Douglas.

[00:21:39] Speaker 04:
And I guess I'm having a hard time on that last one, understanding your point, which is that, oh, well, they could have charged her with more.

[00:21:47] Speaker 04:
It doesn't really seem to relate to, you know, her medical ailment as a reason for why, you know, she maybe shouldn't receive a removal.

[00:22:00] Speaker 04:
Anyway, maybe you can point that to me better.

[00:22:04] Speaker 03:
Certainly.

[00:22:05] Speaker 03:
And I think it might be useful to explain this vis-a-vis some of the cases cited by Petitioner in her reply.

[00:22:11] Speaker 03:
Specifically, I believe Petitioner said, Bell, I think she was referring to the Ball decision from this court in 2018, where this court may remember there was an employee who, in the midst of a depressive episode, completed his time cards for about 400 hours but did not actually work during that period.

[00:22:26] Speaker 03:
This court reversed, finding that there was not enough discussion of the mental state of Mr. Ball in the administrative judge's decision.

[00:22:34] Speaker 03:
Because there was no discussion of it.

[00:22:36] Speaker 03:
There was the only factor that was discussed in the decision was the seriousness of it.

[00:22:42] Speaker 03:
There was no mention of the medical records that had been submitted.

[00:22:44] Speaker 03:
There was no mention of the testimony from Mr. Ball that he was incapacitated at that time.

[00:22:50] Speaker 03:
Similarly with the Malloy case where this court again remanded finding there was not enough discussion of a mental state.

[00:22:57] Speaker 03:
In that case, Ms.

[00:22:58] Speaker 03:
Malloy testified that she had been undergoing a depressive episode during the period and time.

[00:23:03] Speaker 03:
The administrative judge essentially found that her testimony was not credible, notwithstanding the fact that there were contemporaneous medical documents that were also placed on the record that supported the testimony that she gave.

[00:23:13] Speaker 03:
This court found that that was an abusive discretion to have ignored that medical testimony and to have not

[00:23:18] Speaker 03:
examined the impact that her mental state might have had on the activity that she undertook.

[00:23:24] Speaker 03:
That compared to the administrative judge's position here, where it cannot be said that there's no discussion of her illness.

[00:23:30] Speaker 03:
It is woven throughout... I agree.

[00:23:32] Speaker 04:
I understand your point on that.

[00:23:34] Speaker 04:
I'm having a little bit of a hard time because the only place where I see him talk about this is the judge.

[00:23:41] Speaker 04:
The only place where the judge talks about

[00:23:46] Speaker 04:
whether to sustain the removal penalty, notwithstanding the fact that it didn't sustain both charges that the agency had found.

[00:23:57] Speaker 04:
It's one sentence.

[00:23:59] Speaker 04:
He says, even though I did not sustain charge one, I still find these absences pertinent to charge one or aggravating, and that the absences pertinent to charge two suffice to render the agency's removal penalty within the bounds of reasonableness.

[00:24:12] Speaker 04:
But he didn't actually discuss the Douglas Factors in that context.

[00:24:16] Speaker 04:
It's just one sentence.

[00:24:19] Speaker 03:
I understand, Your Honor.

[00:24:20] Speaker 03:
And we would argue that that sentence is the summary of the entirety of the administrative judge's 23 page

[00:24:27] Speaker 03:
decision, again, talking and analyzing the evidence before it, looking at evidence that was outside that pointed to by the agency.

[00:24:36] Speaker 04:
And I would also... So it's incumbent on us then to comb through all of the decisions of the board in these kinds of circumstances and kind of, you know, fair it out where we think that they might be talking about Douglas Factors in different parts of the opinion.

[00:24:51] Speaker 04:
Is that what you're suggesting?

[00:24:53] Speaker 03:
We are suggesting that under Robinson, the entire decision is read in a whole and in harmony.

[00:25:00] Speaker 03:
And so it is not just a limitation to the discussion of the penalty and the Douglas Factors in the few paragraphs at the end of the opinion, but rather the entirety.

[00:25:09] Speaker 03:
So yes, we do think findings that the administrative judge makes with regard to how the agency provided for more leniency, notwithstanding the fact that because it was a medical condition along those lines, we do think that those are relevant to the mitigation.

[00:25:21] Speaker 03:
And we do think that under

[00:25:23] Speaker 03:
under Robinson, those should be considered as the analysis of the administrative judge because they were his analysis.

[00:25:29] Speaker 02:
But what if the administrative law judges would say, I find, yes, now look for it in my opinion?

[00:25:43] Speaker 02:
I mean, I'm understanding what Judge Stoll is asking you, and I'm not satisfied with your answer as well.

[00:25:52] Speaker 02:
that it's up to us to find, within the opinion, support for the AJ.

[00:26:03] Speaker 03:
Understood, Your Honor, understood.

[00:26:05] Speaker 03:
And I'm sure this is not the first time the Court has wished that the Board perhaps gave a more fulsome explanation for its decision.

[00:26:11] Speaker 02:
However, again, we do think under Robinson, the reading the entire- Well, I think we do require a justification.

[00:26:19] Speaker 02:
We do require an analysis.

[00:26:23] Speaker 02:
I have said.

[00:26:25] Speaker 02:
Yes.

[00:26:26] Speaker 02:
And here, there's not much, if any, analysis.

[00:26:29] Speaker 02:
But you're saying that what we should do is we should have set the opinion as a whole to answer whatever questions may come up, including this one.

[00:26:39] Speaker 02:
And I just don't think that you have legal authority for that.

[00:26:46] Speaker 03:
I would refer the court to the Robinson decision on page 1018.

[00:26:50] Speaker 03:
And I'm quoting here where it says, the length and detail of the board's discussion of Mr. Robinson's misconduct throughout the remainder of the opinion is relevant to numerous Douglas factors, including the seriousness of the offense.

[00:27:00] Speaker 03:
We have found that this type of analysis may not be repeated in the penalty discussion, but rather the opinion should be read as a whole.

[00:27:07] Speaker 04:
What if, though, when I look at the analysis here, that one sentence, I can't figure out what all the analysis would have been and what the

[00:27:18] Speaker 04:
judges analysis would have been for all the different Douglas factors because he hasn't provided one and I can't figure it out from the opinion.

[00:27:26] Speaker 04:
I mean, I'm supposed to be reviewing the board's decision to see whether it's arbitrary capricious and abuse of discretion, whether it's supported by substantial evidence, but I don't see what I'm supposed to be reviewing here with respect to these Douglas factors when they're not specifically addressed.

[00:27:45] Speaker 03:
Understood, Your Honor, understood.

[00:27:48] Speaker 03:
I believe we may need to stand on our brief on this.

[00:27:50] Speaker 03:
I fully understand the court's concern with this, and I apologize for not having a different answer other than we do think that the entirety of the decision speaks to the analysis here and also the underlying reasonableness of the penalty.

[00:28:03] Speaker 03:
And I think as support for that, I would point the court to appendix page 42.

[00:28:08] Speaker 03:
which is the removal decision from the agency, where the agency does walk through the fact that the table of penalties and the fact that even though the AWOL charge, which of course can be for an hour of tardiness returning from lunch, a first penalty there does not necessarily recommend removal.

[00:28:25] Speaker 03:
Later in the table, it does say that excessive unauthorized absences more than five days

[00:28:30] Speaker 03:
would justify removal.

[00:28:32] Speaker 03:
And there you have the agency's specific analysis talking about the fact that it believes removal is sufficient under excessive unauthorized absences, which is, of course, what absent without leave is.

[00:28:44] Speaker 03:
And so we do think that notwithstanding the limited nature of the analysis done by the administrative judge, the analysis given by the agency and the record specifically noting that it believes removal is sufficient for the AWOL charge

[00:28:59] Speaker 03:
we think provides enough support for the decision.

[00:29:03] Speaker 03:
And I see that my time has completed.

[00:29:05] Speaker 03:
Unless there's further questions from the panel, we respectfully request that the court affirm the decision of the administrative judge.

[00:29:11] Speaker 03:
Thank you.

[00:29:12] Speaker 01:
Any more questions from the panel?

[00:29:15] Speaker 04:
No, thank you.

[00:29:17] Speaker 01:
Okay.

[00:29:18] Speaker 01:
In that case, Ms.

[00:29:19] Speaker 01:
Rosenthal, you have your rebuttal time.

[00:29:28] Speaker 01:
Are you there?

[00:29:28] Speaker 00:
Are you unmuted?

[00:29:31] Speaker 00:
Thank you, Your Honor.

[00:29:31] Speaker 00:
Sorry about that.

[00:29:33] Speaker 00:
Turning first to the penalty section of the board's decision, we agree, as Your Honor pointed out, that the Douglas Factors are not addressed here at all, and that's really error.

[00:29:45] Speaker 00:
And moreover, to the

[00:29:50] Speaker 00:
the board does adopt the agency's decision and said the deciding official considered as mitigating the lack of any disciplinary record and the quality of her work and noticeably is expressly absent as to the medical condition.

[00:30:05] Speaker 00:
So it appears that the medical condition was not given at all consideration as to whether it was mitigating in contrast to what the board does say was mitigating.

[00:30:18] Speaker 00:
We also contend that the fact that the medical condition was mentioned in other parts of the decision does not demonstrate that the board considered the medical condition as mitigating in the assessment of the penalty determination.

[00:30:36] Speaker 00:
And, you know, as Val makes clear,

[00:30:41] Speaker 00:
Just because the medical condition is mentioned, that's not sufficient.

[00:30:47] Speaker 00:
That where the medical condition is in evidence that it must be given weight as mitigating.

[00:30:53] Speaker 00:
And the additional problem of where the medical condition is mentioned in other parts of the decision,

[00:31:02] Speaker 00:
The board seems to fault Ms.

[00:31:05] Speaker 00:
Marino for the results of it rather than consider it as mitigating.

[00:31:11] Speaker 02:
Council, what happens if we were to remand on this case?

[00:31:16] Speaker 02:
What instruction would we remand on?

[00:31:20] Speaker 02:
What instructions will we provide on remand?

[00:31:25] Speaker 00:
Well,

[00:31:27] Speaker 00:
First, well, we believe that the AWOL charge was improper.

[00:31:32] Speaker 00:
So we would ask that it be instructed that because here the absences were solely due to her medical condition that she cannot be charged.

[00:31:45] Speaker 02:
How does that relate to whether the analysis or discussion of the Douglas factors is sufficient or not?

[00:31:53] Speaker 00:
So the Douglas factors takes into account, assumes that the AWOL charge was proper.

[00:32:00] Speaker 00:
So if we assume the AWOL charge is proper, then we would ask that the board consider her medical condition as mitigating and do the proper analysis here that's required under the law.

[00:32:21] Speaker 00:
Also, we would ask that here when less than all charges are sustained, the unsustained charge should be discounted, not found as aggravating, as was done here.

[00:32:36] Speaker 00:
And I just note that this whole Douglas factor is exactly, and the agency's decision demonstrates the problem with

[00:32:50] Speaker 00:
trying to remove someone based on AWOL where, you know, the sole conduct is not being able to work because of a medical condition.

[00:32:59] Speaker 00:
The agency's analysis of the Douglas Factors makes no sense, and again, penalizes her for the results of her medical condition rather than uses the medical condition as mitigating.

[00:33:11] Speaker 00:
So unless your honors have any further questions, we ask that in light of any one of these errors, the court reverse

[00:33:19] Speaker 00:
vacate the board's decision.

[00:33:21] Speaker 01:
Any more questions for Ms.

[00:33:22] Speaker 01:
Rosenthal?

[00:33:24] Speaker 00:
No, thank you.

[00:33:26] Speaker 01:
Okay.

[00:33:27] Speaker 01:
Hearing none, the case is taken under submission with thanks to council.