[00:00:00] Speaker 03:
For the final case, Mr. Harrington, did you hear my explanation to other counsel about your five reserved minutes?

[00:00:09] Speaker 01:
I did, Your Honor.

[00:00:10] Speaker 03:
OK.

[00:00:11] Speaker 03:
So you know the ground rules.

[00:00:12] Speaker 03:
Go ahead.

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

[00:00:14] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
May it please the court, John Harrington for Petitioner Robert Smith.

[00:00:19] Speaker 01:
On remand from this court, the Merit Systems Protection Board erred in sustaining the remaining specifications of Charge 3 against Mr. Smith.

[00:00:30] Speaker 01:
Charge three should have been found not sustained by the administrative judge for the same failures of proof as caused this court to vacate one of the other specifications of charge three.

[00:00:43] Speaker 01:
More broadly, the A.J.

[00:00:44] Speaker 01:
on remand erred in finding Mr. Smith's removal was reasonable.

[00:00:50] Speaker 01:
The A.J.

[00:00:51] Speaker 01:
again ignored the significant context underlying Mr. Smith's conduct as it's charged in specifications in charge one.

[00:00:59] Speaker 01:
in that context primarily involves the position description that was awarded to Mr. Smith by GSA as part of a resolution of a grievance Mr. Smith had against GSA.

[00:01:12] Speaker 01:
He was given unusual latitude in that position description.

[00:01:17] Speaker 01:
The position description specifically said he was under administrative supervision and- Mr. Harrington?

[00:01:24] Speaker 03:
Yes, Judge.

[00:01:24] Speaker 03:
This is Wallach.

[00:01:27] Speaker 03:
If we find that the administrative judge erred in his analysis of the first two car factors, do we get to the third car factor?

[00:01:40] Speaker 01:
A third car factor judge, if I understand it, is a lack of comparator evidence.

[00:01:46] Speaker 01:
Certainly, I think that an analysis of car factor three certainly

[00:01:52] Speaker 01:
gives additional weight to the argument that Mr. Smith's removal should be reversed.

[00:01:58] Speaker 01:
The agency did present no comparator evidence and it should bear the risk of producing no evidence that others who had not engaged in whistle blowing, you know, had been treated similarly.

[00:02:10] Speaker 01:
And, you know, the AJ certainly erred in finding that factor neutral.

[00:02:15] Speaker 01:
So we believe if it's considered at all, it adds weight to Mr. Smith's argument that his removal should be reversed.

[00:02:22] Speaker 03:
Mm-hmm.

[00:02:24] Speaker 03:
Go ahead.

[00:02:26] Speaker 01:
But again, I'm turning to the remaining specifications of charge three.

[00:02:30] Speaker 01:
They suffer from the same failures of proof that led this court to vacate one of the other specifications of that charge.

[00:02:39] Speaker 01:
And the same logic and analysis applies there.

[00:02:41] Speaker 01:
Reconsideration of those specifications are not foreclosed by the law of the case doctrine.

[00:02:50] Speaker 01:
This court instructed the board to determine whether Charge 3 as a whole may be sustained given its vacating of one of the specifications and the board requested briefing specifically on that issue and the board erred in not finding that the remaining specifications of Charge 3 should not be sustained.

[00:03:13] Speaker 01:
Going to the reasonableness of removal, I just wanted to finish my thought regarding Mr. Smith's position description, which is critical here.

[00:03:22] Speaker 01:
He was given the ability to independently design and carry out his work and was specifically given the ability to communicate throughout GSA to all levels of management.

[00:03:34] Speaker 01:
And in response to that position description and Mr. Smith exercising his discretion under it, the GSA issued a

[00:03:43] Speaker 01:
issued and reissued a non-disclosure directive at him that itself is arguably a prohibited personnel practice that required him to receive pre-approval from his immediate management chain before he disseminated any communications more broadly within GSA and it directly contradicted his position description and led to

[00:04:12] Speaker 01:
the comments that are cited against him and the specifications under Charge 1.

[00:04:16] Speaker 01:
And those charges almost all relate specifically to Mr. Smith pushing back on his supervisors with regard to what he considered an inappropriate imposition of that non-disclosure policy and, you know, limiting him from exercising the authority and the discretion that was given to him in his position description.

[00:04:42] Speaker 01:
So we believe all of charge one should have been reconsidered and the judge, AJ again, failed to consider the strength of the evidence on the part of Mr. Smith, his countervailing evidence, ignored the strong evidence on Mr. Smith's part of management's motive to retaliate even though

[00:05:05] Speaker 01:
the decision-makers in Mr. Smith's removal were not directly implicated in his protected disclosures, of which he made numerous protective disclosures.

[00:05:15] Speaker 01:
Even though they weren't directly implicated, they certainly were part of the management that was being criticized, and they had a motive to retaliate, particularly, you know, given Julia Foles, the decision-maker's email of March 2016,

[00:05:34] Speaker 01:
when she said the GSA needed to take action immediately against Mr. Smith and that they were embarrassed that he's representing OCFO, which again is strong evidence of motive to retaliate.

[00:05:47] Speaker 01:
And Mr. Smith disclosed mismanagement, which he believed was costing GSA and taxpayers billions of dollars.

[00:05:55] Speaker 01:
He communicated those concerns to high-level management throughout GSA on numerous occasions

[00:06:02] Speaker 01:
his managers knew of those disclosures, expressed embarrassment about them, and tried to stop those disclosures by issuing the non-disclosure directive that directly contradicted his position description.

[00:06:16] Speaker 01:
And again, we've spoken to CAR factor three already, the lack of comparator evidence, and the agency, again, bears the risk of presenting no evidence with regard to comparators.

[00:06:27] Speaker 01:
So, in conclusion,

[00:06:29] Speaker 01:
The AJ erred in sustaining the remaining specifications of charge three, which suffered from the same failures of proof as the vacated specification.

[00:06:39] Speaker 01:
And in any case, the remaining two specifications at most would warrant some sort of reprimand of Mr. Smith, even if they were found to be factually accurate.

[00:06:52] Speaker 01:
The AJ erred in holding that removal was reasonable,

[00:06:55] Speaker 01:
It ignored the significant context to Mr. Smith's conduct that underlies all of the specifications in Charge 1, particularly the efforts to restrict his duties and to retaliate against him through the use of that non-disclosure policy.

[00:07:11] Speaker 01:
And the agency did not meet its burden to show by clear and convincing evidence that it would have removed Mr. Smith absent his protective disclosures.

[00:07:21] Speaker 01:
The AJA ignored evidence of motive to retaliate.

[00:07:24] Speaker 01:
didn't consider and didn't properly consider the consequences on the part of the agency of that lack of comparator evidence.

[00:07:33] Speaker 02:
So we believe... And I guess this is Judge Stoll.

[00:07:37] Speaker 02:
On that CAR factor three, are you suggesting that the board define similarly situated employees to narrowly

[00:07:50] Speaker 01:
I'm sorry, Judge, am I asking you to define it too narrowly or that it has been defined too narrowly?

[00:07:56] Speaker 02:
If it has been defined too narrowly.

[00:07:59] Speaker 01:
Well, I mean, certainly the agency, you know, has the burden to present some evidence that others have been disciplined for what it considers unprofessional or insubordinate communications and they presented no such evidence, even, you know, taking

[00:08:18] Speaker 01:
you know, identifying comparators broadly.

[00:08:20] Speaker 01:
There's just no evidence presented by the agency that it had taken similar actions against anyone who had not engaged in a whistle blowing.

[00:08:29] Speaker 01:
I hope that answers your question, Judge.

[00:08:32] Speaker 02:
Well, I just wanted to know if you had an argument that the board defined or the agency defined similarly situated too narrowly in looking at car factor three.

[00:08:41] Speaker 02:
And it sounds like your primary argument is simply that the government didn't produce evidence so this

[00:08:47] Speaker 02:
factors should be weighed in your favor.

[00:08:50] Speaker 01:
Yes, Judge.

[00:08:51] Speaker 01:
The AJ erred in finding that factor neutral, but as with the other specifications and other charges, there was a lack of real analysis on the part of the AJ, and that was kind of a conclusory finding that the factor was neutral.

[00:09:05] Speaker 01:
And, you know, it's hard to really assess the AJ's reasoning there because, again, there was a lack of a full discussion and certainly

[00:09:14] Speaker 01:
a lack of any analysis of Mr. Smith's countervailing evidence as there was.

[00:09:19] Speaker 02:
What would you have wanted the AJ to further discuss?

[00:09:25] Speaker 01:
With regard to that particular factor, Judge, I think the absence of evidence probably doesn't support a detailed discussion.

[00:09:34] Speaker 01:
So perhaps my point doesn't apply with regard to Car Factor 3 as much as it does to some of the other areas.

[00:09:40] Speaker 01:
But certainly in terms of the context of

[00:09:43] Speaker 01:
All of the specifications under charge one, I think that's really where the AJ's lack of discussion and lack of analysis of Mr. Smith's countervailing evidence is most apparent and most significant in terms of determining whether removal was or was not a reasonable penalty.

[00:10:03] Speaker 01:
And certainly, we believe it's clearly been demonstrated that removal was not warranted.

[00:10:11] Speaker 02:
And the board did discuss all of the Douglas factors in its analysis of whether removal was an appropriate penalty, right?

[00:10:22] Speaker 01:
It referred to them, Judge.

[00:10:24] Speaker 01:
I certainly think they were not fully discussed and properly analyzed, but there was reference to the factors.

[00:10:32] Speaker 01:
And it would deserve the balance of my time for revoke.

[00:10:40] Speaker 03:
Government, please.

[00:10:42] Speaker 04:
Good morning.

[00:10:43] Speaker 04:
May it please the court.

[00:10:44] Speaker 04:
The court should affirm the board's decision sustaining GSA's removal of Mr. Smith and rejecting his reprisal defense.

[00:10:51] Speaker 04:
The board's conclusions are supported by substantial evidence.

[00:10:55] Speaker 04:
And on appeal, Mr. Smith's challenges generally revolve around the theory that the board did not consider the full context.

[00:11:03] Speaker 03:
This is Judge Wallach.

[00:11:04] Speaker 03:
I have a couple of questions for you.

[00:11:07] Speaker 03:
Uh, in the red brief at six, you say that the, uh, GSA's office of the chief financial officer was reorganized in 2015 and Mr. Smith was given a new position description.

[00:11:22] Speaker 03:
Now my recollection from the last case is that this was in fact done pursuant to a negotiation to settle Mr. Smith's complaints.

[00:11:32] Speaker 03:
Am I incorrect about that?

[00:11:35] Speaker 04:
Your Honor, you're correct.

[00:11:36] Speaker 04:
It was, there was a grievance, there were some grievances that Mr. Smith had filed and the, as a result of that, he was given a, no, I'm sorry, Your Honor.

[00:11:51] Speaker 04:
He was given the new position description and then as a result of his grievance, there was

[00:11:57] Speaker 04:
a email that his supervisor sent out announcing that he was in this position that was sent out some months later.

[00:12:06] Speaker 03:
But it was done pursuant to that negotiation, am I correct?

[00:12:13] Speaker 04:
Yes, Your Honor, that's correct.

[00:12:15] Speaker 03:
Okay, because I didn't find your passive voice presentation entirely accurate at page six.

[00:12:25] Speaker 03:
In the blue brief at 15, Mr. Smith says that Mr. Augustus put him on a performance improvement plan.

[00:12:37] Speaker 03:
The record shows that.

[00:12:38] Speaker 03:
Exactly what performance was Mr. Smith to improve?

[00:12:43] Speaker 04:
Mr. Smith's performance in his communications with

[00:12:50] Speaker 04:
his customer organization, the public building service organization, the performance improvement plan details at appendix page 1139, the communications between Mr. Smith or from Mr. Smith to individuals outside the office of the chief financial officer and they show that he was

[00:13:17] Speaker 04:
using disparaging language or demeaning them and not working with in a customer friendly way and this was something that was identified in his performance evaluations in both 2014 and 2015 at appendix pages 764 and excuse me your honor 770 where although he did get a full

[00:13:47] Speaker 04:
He got rated three for communication and customer relationships.

[00:13:52] Speaker 04:
He was, it indicates that he should continue to increase his efforts to present his information in a concise, customer-friendly manner to improve overall understanding.

[00:14:03] Speaker 04:
They recommended that he took leadership and communication courses to increase his effectiveness.

[00:14:10] Speaker 04:
And so that was the basis for the performance improvement plan in June of 2016.

[00:14:18] Speaker 03:
is non-customer friendly was that he tended to be verbose.

[00:14:24] Speaker 03:
Is that correct?

[00:14:27] Speaker 04:
His, he was, he was not just verbose, your honor.

[00:14:33] Speaker 04:
His supervisors testified that he prepared lengthy negative narratives that were not easily digestible.

[00:14:42] Speaker 04:
They left readers confused.

[00:14:45] Speaker 04:
His supervisor testified, this is at appendix pages 154 to 155, that the customers found his communications bullying.

[00:14:54] Speaker 04:
And that was the reason for the communication instructions that were put in place, which the board reviewed and concluded was a justified response to complaints about the tone and accuracy of Mr. Smith's communications and that

[00:15:13] Speaker 04:
the communication instruction was not directed or was not the result of concerns about the substance of his communications.

[00:15:20] Speaker 04:
And that's the board's opinion, Appendix Page 5 and Note 1.

[00:15:29] Speaker 04:
So on appeal, Your Honors, Mr. Smith is generally arguing that the failure to follow supervisory instructions in Charge 3 and the penalty of removal

[00:15:41] Speaker 04:
should not be upheld because the board did not consider the full circumstances surrounding his conduct, but to the contrary, the board did discuss the circumstances that Mr. Smith has been focusing on.

[00:15:54] Speaker 04:
First, the board considered specifically whether Mr. Smith was justified in his understanding about his position description, and the board concluded based on the testimony of Mr. Smith's

[00:16:08] Speaker 04:
supervisors that Mr. Smith's belief that he had sort of a unfettered authority and did not have to accept any limits on his personal autonomy, that that was not supported by the testimony or the position description.

[00:16:27] Speaker 04:
And that's the same justification that Mr. Smith relies on for both contesting the board's decision on the Charge 3 as well as

[00:16:37] Speaker 04:
one of the bases that Mr. Smith cites for questioning the penalty of removal.

[00:16:43] Speaker 04:
And then the other major factor that Mr. Smith says the board did not consider was the communication instructions.

[00:16:51] Speaker 04:
However, the testimony from Mr. Smith's supervisors demonstrates that their concern was with the tone of his communications and not the substance.

[00:17:04] Speaker 04:
If we look at the initial communication instruction that was from December 10th of 2014, which is at appendix page 939, Ms.

[00:17:14] Speaker 04:
Gladman is focusing on his communications to managers outside the Office of the Chief Financial Officer.

[00:17:26] Speaker 04:
She testified in her deposition that it was a complaint about

[00:17:31] Speaker 04:
his tone that led to the communication instruction.

[00:17:34] Speaker 04:
And that's consistent with Mr. Nastazzi's statements and his emails to Mr. Smith in May of 2015, where Mr. Smith mentions that he believes that the communication instruction would, for some reason, limit his ability to go to the OSC or the OIG.

[00:17:54] Speaker 04:
Mr. Nastazzi responds, and this is at Appendix Page 2399,

[00:17:59] Speaker 04:
that he's not intending to limit official contacts just to give structure to the way he's communicating through management.

[00:18:09] Speaker 04:
And then this is similar to Mr. Augustus' testimony that he was concerned about the lengthiness of Mr. Smith's communications and that they were not easily digestible, not

[00:18:28] Speaker 04:
really meeting the needs of the client organization.

[00:18:31] Speaker 04:
And again, that's testimony at appendix pages 154 to 155.

[00:18:35] Speaker 04:
On the day that Mr. Augustus implemented or re-implemented the communication instruction on March 17, 2016, the record indicates at appendix page 1138 that Mr. Smith had, I'm sorry, that Mr. Augustus had attended a meeting where

[00:18:58] Speaker 04:
employees from the public building service complained about Mr. Smith's communications and characterized them as not being friendly, customer friendly and not really meeting their needs.

[00:19:15] Speaker 04:
And so in light of all of that testimony, substantial evidence supports the board's conclusion that the communication instructions were

[00:19:24] Speaker 04:
a proper attempt to monitor the tone of Mr. Smith's communications and not the substance.

[00:19:34] Speaker 04:
And so therefore the penalty of removal is reasonable because the board took into account all of the mitigating circumstances that Mr. Smith is citing and weighed those factors against the, that evidence against the seriousness of his misconduct and concluded that the penalty of removal was not

[00:19:55] Speaker 04:
was not unreasonable, it was not totally unwarranted.

[00:19:57] Speaker 04:
Mr. Smith's discussion of the communication limitation also goes to his reprisal defense.

[00:20:07] Speaker 04:
On remand, the board considered all three car factors and found the first and second car factors weighed in favor of the government, found the third factor neutral, and the board specifically again considered Mr. Smith's

[00:20:23] Speaker 04:
contention that the communication instruction was evidence of a motive to retaliate.

[00:20:31] Speaker 04:
The board rejected that interpretation of the purpose of the communication instruction and again found that it was a reasonable approach to address the tone and nature of Mr. Smith's communications.

[00:20:50] Speaker 04:
The board also specifically addressed Ms.

[00:20:53] Speaker 04:
Foles, the deciding official's email where she said she was embarrassed.

[00:20:59] Speaker 04:
And the board cited to Ms.

[00:21:02] Speaker 04:
Foles hearing testimony in which she explained that her concern was that he was sending an email out.

[00:21:10] Speaker 04:
This is at appendix page 752.

[00:21:13] Speaker 04:
He was purporting to speak on behalf of the organization.

[00:21:18] Speaker 04:
and telling people outside his chain of command that they should ignore his supervisor's prior report.

[00:21:27] Speaker 04:
And he was concerned that he was presenting this as if he was speaking on behalf of the organization, that he was doing so in an unpolished manner, that his communication was riddled with grammar errors, and that's at appendix pages 221 to 222.

[00:21:41] Speaker 04:
And so the board found that this email was explained by Ms.

[00:21:45] Speaker 04:
Smith's concerns about the qualitative

[00:21:48] Speaker 04:
of Mr. Smith's communications and not any attempt to retaliate against him.

[00:21:53] Speaker 04:
As to the third factor of the car factors, Your Honor, the board credited Ms.

[00:22:03] Speaker 04:
Folk's testimony that there were no similarly situated employees.

[00:22:07] Speaker 04:
In Whitmore, this court recognized that the board construes similarly situated employees to be narrowly and that it must be nearly identical

[00:22:18] Speaker 04:
In light of Ms.

[00:22:19] Speaker 04:
Fulve's testimony, substantial evidence supports the board's conclusion that this factor was neutral and the board did not conclude that that factor weighed in favor of the government.

[00:22:34] Speaker 04:
And then weighing all three factors is the board must.

[00:22:37] Speaker 00:
Can I just ask a question?

[00:22:38] Speaker 00:
This is Judge Toronto.

[00:22:39] Speaker 00:
What was the agency or administrative judge's understanding of similarly situated

[00:22:48] Speaker 00:
employees who had engaged in the communications related conduct but not protected disclosures and whether such employees had been fired or what?

[00:23:09] Speaker 04:
My understanding, Your Honor, is that the board was looking for

[00:23:18] Speaker 04:
the extent to which employees within the agency engaged in similar misconduct.

[00:23:23] Speaker 04:
What is similar?

[00:23:29] Speaker 00:
What was the agency looking for when it was looking for similar conduct?

[00:23:34] Speaker 04:
A disrespectful conduct towards a supervisor and

[00:23:39] Speaker 04:
failure to follow the supervisory charges, so the conduct that Mr. Smith was charged with.

[00:23:45] Speaker 04:
That's what Ms.

[00:23:49] Speaker 04:
Full testified that she was not familiar with any other employees within the agency that engaged in similar misconduct to Mr. Smith.

[00:23:58] Speaker 00:
Thank you.

[00:24:04] Speaker 04:
And so for these reasons, Your Honor, we respectfully request that the court affirm the board's decision finding that the penalty of removal was reasonable and rejecting Mr. Smith's reprisal defense because the board's decision is supported by substantial evidence.

[00:24:26] Speaker 03:
OK.

[00:24:27] Speaker 03:
Thank you, counsel.

[00:24:29] Speaker 03:
We have some rebuttal time.

[00:24:31] Speaker 01:
Thank you, Your Honor.

[00:24:34] Speaker 01:
Mr. Smith's position description was a negotiated resolution of agreements as has been discussed already.

[00:24:43] Speaker 01:
And the email announcement that went out throughout GSA, the record reflects Mr. Smith testified that, I don't want to misquote this, but to the effect that that was the proudest day of his life or certainly the proudest day of his career at GSA when that email announcement regarding his new position description.

[00:25:02] Speaker 01:
was disseminated and that was a significant day for him.

[00:25:07] Speaker 01:
And he was not removed by GSA for purported deficiencies in his communications for writing communications that were too lengthy or not easily digestible.

[00:25:20] Speaker 01:
Certainly, I think the record reflects Mr. Smith could benefit from some proofreading and I'm sure his communications could be improved like

[00:25:28] Speaker 01:
Like virtually anyone's communication could be improved.

[00:25:30] Speaker 01:
But again, that's not why he was removed.

[00:25:32] Speaker 01:
And the record shows that he won awards in 2012 and 2013 nationwide.

[00:25:39] Speaker 01:
Apologies, Judge.

[00:25:40] Speaker 01:
I didn't realize that had been disconnected.

[00:25:41] Speaker 01:
And again, apologize for whatever the technical issue was.

[00:25:45] Speaker 01:
But I'm ready to proceed.

[00:25:49] Speaker 03:
Go ahead.

[00:25:49] Speaker 03:
I don't think you need to apologize, but fire away.

[00:25:54] Speaker 01:
I'm not sure.

[00:25:55] Speaker 01:
The last thing you heard me say, judges, but just returning to the CAR factors for a moment.

[00:26:02] Speaker 01:
The board erred in finding that CAR factor one favored GSA.

[00:26:07] Speaker 01:
Here, charges two and four have already been found not to have been sustained.

[00:26:12] Speaker 01:
One of the specifications under charge three has been vacated as well.

[00:26:19] Speaker 01:
And in the mitigating circumstances, certainly,

[00:26:22] Speaker 01:
strongly support Mr. Smith, the countervailing evidence that we've already discussed regarding his position description and the non-disclosure policy.

[00:26:31] Speaker 01:
And again, the AJA did not properly examine the context in which Mr. Smith made his communications.

[00:26:38] Speaker 01:
I'm not sure if I'm repeating myself, but I'm also not sure what previously was heard.

[00:26:45] Speaker 01:
But again, separating any issues regarding

[00:26:50] Speaker 01:
The length of Mr. Smith's communications or how easily digestible they are from the protected nature of their substance is extremely difficult and certainly it weighs against the agency meeting.

[00:27:03] Speaker 01:
It's clear and it's burdened to show by clear and convincing evidence that it would have removed Mr. Smith had his communications not involved in substance concerns that were protected under the WPA.

[00:27:18] Speaker 01:
And the absence of evidence under CAR 3 with regard to comparators is at GSA's peril.

[00:27:24] Speaker 01:
And the fact that they could identify no one who is engaged in similar conduct certainly cuts against them in terms of meeting their burden to show by clear and convincing evidence that they would have removed Mr. Smith absent his protective disclosures.

[00:27:40] Speaker 01:
So again, I just want to

[00:27:42] Speaker 01:
highlight that the issue here is not the quality of Mr. Smith's communications.

[00:27:46] Speaker 01:
That's not why GSA said they removed him.

[00:27:48] Speaker 01:
And he was not disrespectful to his communicators, to his supervisors as the specifications under Charge 1 allege.

[00:27:59] Speaker 01:
Again, that was Mr. Smith asserting what he believed to be his discretion and his latitude per his negotiated position description.

[00:28:09] Speaker 01:
you know, addressing any issues about the quality of his communications could easily have been handled in a variety of ways that did not involve a gag order on Mr. Smith's ability to communicate outright.

[00:28:23] Speaker 01:
And if there are any other questions, I'm happy to answer them, but I think that's it for my robotic time.

[00:28:33] Speaker 03:
Thank you, counsel.

[00:28:35] Speaker 03:
The matter will stand submitted, and that's the last case of the day.

[00:28:41] Speaker 00:
The honorable court is adjourned until tomorrow morning at 10 a.m.