[00:00:00] Speaker 03:
This is Mary Barnes versus GSA.

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2021, 1799.

[00:00:08] Speaker 03:
Ms.

[00:00:09] Speaker 03:
Watson, we're ready.

[00:00:11] Speaker 01:
Thank you, Your Honor.

[00:00:14] Speaker 01:
And thank you for hearing this case.

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May it please the court?

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I hope to address two main points this morning.

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First, substantial evidence does not support the charges lodged against Mary Barnes by the General Services Administration.

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And second, that notwithstanding the lack of substantial evidence to support the charges, removal exceeds the bounds of reasonableness and does not promote the mission or efficiency of the agency or the federal service in this case.

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Moreover... Ms.

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Watson.

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Yes.

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How can the idea of conducting business

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Halfway around the world, flying for all these hours and conducting business, how was that consistent with claiming medical leave that she couldn't do her job properly because of illness?

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Well, first, your honor, I would note that it was recognized by the administrative judge in this case, in addition to the proposing and deciding officials that travel is not prohibited while an employee is using sick leave.

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And perhaps more importantly, Dr. Barnes's physician, Dr. Vanita Raman, certified that Dr. Barnes required

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time off of her job at GSA because of her medical diagnoses.

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And I would suggest that this question goes toward perhaps a larger point we are hoping to get across in this case, which is that Dr. Barnes' medical conditions were largely mental medical conditions, although some were physical, such as elevated blood pressure and migraine headaches.

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but she was also diagnosed with acute anxiety, depressed mood and stress.

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And so the medical response to those conditions is not so visible or obvious as, for example, a cast or a broken leg or something of this nature.

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So she was diagnosed as having her high level executive functions affected by the medical diagnoses that Dr. Raman identified after examining

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Dr. Barnes on August 1st, and she certified that for those reasons, Dr. Barnes required time away from work on the date specified, which coincided with the dates that issue in this case.

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So why could the agency not also ask her to provide further information from her own doctor who had already examined her?

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Your honor, I would say we don't suggest that the agency was prohibited from requesting further information.

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Our position is, though, that the medical certificate Dr. Barnes provided, which, and the other supporting medical documents meet the requirements under the applicable regulations to entitle her to sick leave.

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The Code of Federal Regulations

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requires an agency to provide, to allow sick leave for an employee who is incapacitated from the performance of her duties.

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Dr. Raman certified that that was the case for Dr. Barnes.

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And the regulations provide that medical certificate may be required.

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I'll also note that that includes

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A self certification and Dr Barnes had did make some statements regarding her own medical needs and conditions, which could be considered self certification.

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But more importantly, Dr Barnes is treating physician provided sufficient explanation as to what she was diagnosed with.

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How much the onset date of those conditions, which Dr. Raman identified as July 11th, 2019 on the medical certificate.

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And that they expected duration was three to four months.

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The functions that were affected were her high level executive functions.

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And Dr. Barnes' job at the GSA

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as noted by the managers in this case, were of the nature of coaching, consulting, skills development, development of human capital.

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And we would suggest that it is self-explanatory that those sorts of duties are directly affected by high-level executive functions.

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And for that reason, it was not justified for the agency to deny Dr. Barnes' request for sick leave.

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Counsel, wasn't she doing some coaching in her side business?

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That's true, Your Honor.

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And in this case, what Dr. Barnes required was time away from her GSA job.

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It may be notable that the onset date of those medical conditions that she was diagnosed with is July 11, 2019, according to Dr. Raman.

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And that information is located at Appendix page 295.

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Are you somehow differentiating between the type of coaching at her main job and the side business?

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Because you, I thought just indicated to me that would have been a high level function, executive function.

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that would have been affected.

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I'm just trying to understand your argument here.

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Yes, Your Honor.

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Dr. Barnes testified that engaging the business and activities of her personal business evolve, which is undisputed, was approved by GSA ethics.

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Ms.

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CFD testified that she was very upfront about the activities with that job, which I simply mentioned for context.

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Dr. Barnes testified that she required time away from her GSA position to engage her mind in a different way, and she needed time away from that job.

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And the sequence of events in this case, I would suggest, went from Dr. Barnes wanting to take time away to de-stress and have time away to her having a

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a serious medical need for time away from that job, which Dr. Raman assessed her to need when she examined Dr. Barnes on August 1st and assessed those to have onset on July 11th, 2019, which I would note is the date that it became clear to Dr. Barnes that Tricia Siewski, her supervisor, was not going to allow her to take the leave

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she had been trying to take.

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So at that point, what it appears is she wanted a time away.

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And I would also note every manager who is involved in this case thought that she should have been allowed to take the leave she initially requested with the exception of Ms.

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Siewski.

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But in any event,

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It was on that date that she learned that she was truly going to block this leave.

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Dr. Barnes testified at the hearing that in this interim time period between July 11th and August 1st, she was, I believe she described herself as a broken person.

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She was distraught.

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She wasn't able to focus.

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She testified she had her first panic attack since she'd been in high school.

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And then, and so she submitted this medical documentation, which, as I say, comports with the requirements provided for in the federal regulations.

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And it's also notable that Dr. Barnes testified that while she was away on the leave she requested with the plan, she had been upfront about the entire time.

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She suffered no migraine headache, and it appears that it had the desired effect.

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Dr. Raman recognized that, as I say, this wasn't a medical need such as a broken leg.

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It wasn't a medical need such as needing an appendectomy.

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She needed something that is less visible, less obvious to address her real medical needs, which in large part were mental in nature.

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When the request was made for additional information about her condition,

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shortly after she submitted Dr. Rahman's report.

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I take it she did not respond to that request?

[00:09:26] Speaker 01:
Your Honor, she did respond, though she didn't... She didn't provide any additional information?

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She did not provide additional information from her doctor.

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That's inaccurate.

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It is referenced in the initial decision that she replied herself by email.

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With some, it's described as disputing meeting additional information, but she didn't provide the information that was requested the supplemental information from a medical person.

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She didn't provide information from a medical person.

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She herself.

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self-described information about her medical condition, but it is accurate.

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The information of the panic attack and various others are not reflected in Dr. Raymond's report.

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Her report is pretty limited.

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High blood pressure, headache due to anxiety, symptoms of fatigue, depressed mood, severe anxiety and stress.

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That is about it.

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And Dr. Ames, is it not reasonable for the agency to have requested a little more detail?

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Our position is that it wasn't wrong to request information.

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Dr. Barnes did respond with information that she provided on her own, on herself.

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I point out, you know, the FMLA certificate, it has six symptoms.

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And also, it's backed up with referral medical referrals, showing that she was diagnosed with acute stress disorder, migraine with aura and elevated blood pressure.

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You know, as I say, the, the.

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federal regulations, they do define medical certificates in 5 CFR section 630.201A as a written statement signed by a registered practicing physician or other practitioner certifying to the incapacitation of the patient.

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And our position, that's exactly what this document does.

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And

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And for this reason, it was not justified for the agency to deny Dr. Barnes' request for sick leave.

[00:12:00] Speaker 03:
Ms.

[00:12:00] Speaker 03:
Watson, you're into your rebuttal time.

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You can continue or you can save it.

[00:12:05] Speaker 01:
I will just mention briefly, if I may, with respect to the charge of lack of candor, that charge is very closely related to the AWOL charge as it's essentially on the basis that

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Dr Barnes requested leave under sick leave and but then she didn't have sufficient medical justification.

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And of course, our position is that she did the other.

[00:12:32] Speaker 02:
Sorry.

[00:12:33] Speaker 02:
You mentioned, just very briefly, you mentioned that her FMLA request, but as I understand the administrative judge's ruling, he said that she had rescinded her request for FMLA leave.

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That's on page 15 of the Joint Appendix.

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So is that even before us?

[00:12:53] Speaker 02:
The lack of candle charges before you judge, but you're- No, but the FMLA leave issue, whether it was improper to deny her FMLA leave, is that before us?

[00:13:04] Speaker 01:
No, you're correct, Judge, and sorry to be confusing, but our argument is that her sick leave request was improperly denied.

[00:13:13] Speaker 02:
You're right.

[00:13:13] Speaker 03:
Okay.

[00:13:15] Speaker 01:
Thank you.

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I'll reserve the remainder for rebuttal.

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We will save it for you, Ms.

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Watson.

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Good morning, and may it please the court.

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We respectfully request that the court affirm the MSPB's decision because substantial evidence supports Ms.

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Barnes' charges of being absent without leave, lacking candor, and conduct on becoming a federal employee, and because Ms.

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Barnes has not demonstrated that the penalty of removal is, quote, so harsh and unconscionably disproportionate to the offense that it amounts to abuse of discretion.

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And that's the Arcoleta v. Hopper case.

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The main facts of this case are simple and largely undisputed.

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Ms.

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Barnes began to advertise for retreat in Bali.

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She was organizing for her separate business venture in March of 2019.

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That's before she ever sought approval from her employing agency for her absence.

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The next month, she requested six weeks of leave using a combination of annual leave and leave without pay.

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And her supervisor only granted her two weeks of leave.

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But she refused to take no for an answer and engaged in a scorched earth campaign to secure leave of any sort by any means necessary to host that retreat in Bali for her side business.

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Among other things, she emailed her supervisor, along with a broad audience of other GSA officials, threatening to resign if her leave request were denied, in which she made false statements in an apparent effort to embarrass her supervisor.

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When that bluff and intimidation attempt failed, she attempted a secure leave by abusing protections afforded to federal employees who are medically incapacitated or family members who urgently need assistance due to medical issues.

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When that also failed, she proceeded to go on her trip to Bali anyways.

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resulting in a seven-week absence despite never being granted more than the original two weeks.

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So although Ms.

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Barnes attempts to muddy the factual legal waters to obscure all of this, the North Star in this case is whether the MSPB's decision is, quote, supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

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And that's under SPRO.

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And there is certainly enough evidence for a reasonable line to conclude as her supervisor did, as the deciding official did, and as the MSPB judge did.

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She was AWOL, demonstrated lack of candor, and engaged in conduct on becoming a federal employee.

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In her reply brief, Ms.

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Barnes argued that a ruling in favor of the GSA requires this court to find that she, quote, did not have a medical need to take the leave.

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But that's false on at least three levels.

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As a preliminary matter, as this court made clear in Parker and Brewer, the standard is not what the court would decide in a de novo appraisal.

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Rather, the judicial function is exhausted when a court finds a, quote, rational basis to support the court's conclusions.

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Second, the medical need language she focuses on is not the standard for invoking sick leave.

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Rather, the regulations provide that sick leave is appropriate when an employee is, quote, incapacitated for the performance of his or her duties by physical or mental illness, injury, pregnancy, or childbirth.

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And that's five CFR.

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630-401-A2.

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And the GSA has published time and leave administration policies similar to provides the same thing, which is that sick leave is granted for use when an employee is physically incapacitated to do his or her job.

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This court has also adopted that standard.

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In Washington v. Department of Army, it affirmed the denial of leave where the employee failed to submit, quote, material necessary to support her claim that she was incapacitated for work.

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And finally, importantly, even if this court were to determine that she had a medical need, that does not provide grounds for reversal to any of the charges.

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The AWOL charge was sustained for three independent bases, insufficiency of documentation, failure to provide requested information, and the fact that her actions and statements contradicted any supposed incapacity to work.

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The lack of candor charge was based on her failure to disclose the purpose of her FMLA and sick leave requests.

[00:17:04] Speaker 02:
What about the harshness of the penalty argument?

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It looks to me as if this is somebody who

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with one prior disciplinary issue some years back on her record as otherwise been an exemplary employee, treating the AWOL as a single event, why is that sufficient to justify essentially the death penalty of employment and firing her?

[00:17:36] Speaker 00:
Thank you, Your Honor.

[00:17:38] Speaker 00:
So there was one prior disciplinary issue.

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I understand that, and I alluded to it.

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But setting that aside,

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What's the justification for firing her?

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So, as the GSA officials involved indicated, the prior disciplinary action and the MSPB judge said that the prior disciplinary action was not necessary to reach the penalty imposed here.

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Rather, the board focused on the seriousness of the offenses, her supervisory role at the GSA, her supervisor's loss of confidence, and finally, and very importantly, her failure to express any remorse or take any responsibility for her actions, which under the Woodson standard is an aggravating factor.

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And at this juncture, it seems that Ms.

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Barnes' argument primarily is asking this court to reevaluate and reweigh the Douglas Actors, which, of course, is not this court's role under the Graybill case that we cited.

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Sounds primarily lack of confidence in a supervisor.

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That's a large part of what the record reflects, Your Honor.

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I would also mention that her role at the GSA, as Ms.

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Sievecki indicated, is directly contravened by her conduct in this case.

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So she is the director of the Workplace Transformation Division, and in that role, as my colleague across the aisle indicated, she coaches and consults and tries to assist employees with best practices.

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And obviously, it is not best practices to go AWOL for five weeks.

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It's not best practices to corral a bunch of your colleagues at work and basically try to embarrass your supervisor through false statements or threaten your supervisor with your resignation or invoke these protections that are needed for federal employees in order to run a retreat for your side business.

[00:19:52] Speaker 03:
Presumably, there's nothing inconsistent with having that side business and being a federal employee.

[00:20:01] Speaker 00:
No, Your Honor.

[00:20:02] Speaker 00:
My colleague did correctly state that she did receive permission to run that side business in the first place.

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And the issue is not that she has the side business.

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It was the manner in which she pursued it at the expense of her job here at the GSA.

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I just wanted to address a few points brought up by my colleague.

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So the first was that travel is not prohibited while the employee is on sick leave.

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And that's a very technical matter, correct?

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But that's not the basis for the lack of candor charge.

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And so in Ludlum, they talked about the lack of candor charge being sustained based on the, quote, failure to disclose something that in the circumstances should have been disclosed in order to make the given statement accurate and complete.

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And here, Ms.

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Barnes failed to disclose that Shane attended to work on her side business during her sought after sick leave in the given statement.

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She also argued that the doctor's note was sufficient.

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And this, I think, is a very strong point for us.

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The mere fact that a doctor filled out a form neither automatically requires that an agency grant nor believe nor forecloses the agency for requesting additional information.

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And that's the Taylor case that we cited.

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That's 393FAPBX717.

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In that case, this court affirmed AWOL charge despite petitioners' claims that he, quote, believed the doctor's letter he submitted obviated the need for further documentation, unquote, because, quote, the service requested additional medical evidence at which the petitioner never provided.

[00:21:43] Speaker 00:
And so we find ourselves in that situation.

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And regarding whether or not the doctor's note is sufficient merely because it says,

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She has a high level executive function difficulties and says that she basically needs this vacation.

[00:21:58] Speaker 00:
The regulations require more than that.

[00:22:00] Speaker 00:
So, 5 CFR 630-405A says that an agency may require quote, evidence as to the reason for an absence for any purposes described in section 630-401A.

[00:22:11] Speaker 00:
And so under 630-401A, which is the relevant section here under sick leave,

[00:22:18] Speaker 00:
It's sick leave is appropriate when the employee is, quote, incapacitated for the performance of his or her duties by physical or mental illness, injury, pregnancy, or childbirth.

[00:22:27] Speaker 02:
So, in other words... Go ahead.

[00:22:29] Speaker 02:
I'm sorry.

[00:22:30] Speaker 02:
I have a question for you when you're done there.

[00:22:32] Speaker 00:
In other words, the documentation must provide the reason that the employee is incapacitated.

[00:22:38] Speaker 00:
And that's consistent with plenty of precedent from this court and the MSPB.

[00:22:42] Speaker 00:
The new Howard case, the Tom B. Department of Army case, and the Washington B. Department of Army case.

[00:22:48] Speaker 02:
Now, Mr. Malister, if Ms.

[00:22:54] Speaker 02:
Barnes had decided to challenge the decision denying her sick leave rather than simply going on her trip, what would have been the mechanism administratively for her to do that?

[00:23:08] Speaker 02:
Or would there have been any mechanism?

[00:23:11] Speaker 02:
Mr. Siewiecki denies her leave, and what does she do next if she believes that Ms.

[00:23:20] Speaker 02:
Siewiecki's decision was wrong?

[00:23:23] Speaker 00:
Well, the correct course of action, of course, would have been to provide the requested information.

[00:23:28] Speaker 02:
Okay.

[00:23:28] Speaker 02:
Well, suppose that she felt that the requested information was sufficient in light of the regulations.

[00:23:35] Speaker 02:
but that Ms.

[00:23:36] Speaker 02:
Zievecki was in the wrong in requiring more.

[00:23:41] Speaker 02:
What would her administrative remedy be in that situation?

[00:23:49] Speaker 00:
I think that, so if she, so the precedent from this court establishes that an employee does not have the unilateral ability to deem their submitted doctor's letter sufficient.

[00:24:02] Speaker 00:
That was the case I just cited a little bit earlier.

[00:24:05] Speaker 02:
Right.

[00:24:06] Speaker 02:
But what is her alternative?

[00:24:09] Speaker 02:
If she's not going... If she feels that the decision was wrong, does she have an administrative avenue to pursue?

[00:24:17] Speaker 00:
I'm not exactly sure, Your Honor, but my understanding would be that she could probably escalate it up the chain of command.

[00:24:29] Speaker 02:
Okay.

[00:24:31] Speaker 00:
But I do also want to point out that even plaintiff's cases in the reply are in accord with our view of what is necessary here.

[00:24:40] Speaker 00:
So the Riley case cited on the reply at three held that an agency erred in denying employee sick leave when the employee quote provided it with administratively acceptable evidence that she was incapacitated for the performance of her duties due to illness or injury.

[00:24:55] Speaker 00:
And there the

[00:24:58] Speaker 00:
I guess if you could call it that the incapacitation stems from pregnancy complications that require complete bed rest for four months.

[00:25:05] Speaker 00:
So there whenever you see the MSPB's reasoning of what an incapacity is, it's always more directly tied to the actual illness.

[00:25:17] Speaker 00:
And if there are any further questions, I'd be happy to answer them.

[00:25:27] Speaker 03:
Sounds like no further questions.

[00:25:29] Speaker 03:
Nothing further from you, Mr. Balliker.

[00:25:32] Speaker 00:
For all the reasons in our brief, we believe that Ms.

[00:25:34] Speaker 00:
Barnes fails to meet her burden of demonstrating reversible error in the MSPB's decision.

[00:25:38] Speaker 00:
And we respectfully request that the court affirm the MSPB's decision on that.

[00:25:42] Speaker 03:
Thank you, counsel.

[00:25:43] Speaker 03:
Ms.

[00:25:44] Speaker 03:
Watson has close to three minutes, close to two minutes.

[00:25:53] Speaker 01:
Thank you, Your Honor.

[00:25:55] Speaker 03:
Please proceed.

[00:25:57] Speaker 01:
Thank you, Your Honor.

[00:25:59] Speaker 01:
I'd briefly like to address that several of the cases cited by my colleagues across the aisle involve cases where the employees did not have a sufficient sick leave balance to cover the periods they were requesting, which is not the situation for Dr. Barnes.

[00:26:19] Speaker 01:
I would like that to be clear.

[00:26:20] Speaker 01:
There's no dispute she had a sufficient sick leave balance for her request.

[00:26:25] Speaker 01:
With respect to the severity of the penalty, I would like to point out that the proposing and deciding officials, as well as the administrative judge, all stated that there were no mitigating factors in this case, which I think is refuted by the record and in particular by the medical certificate from Dr. Barnes' physician, noting her for several diagnoses.

[00:26:53] Speaker 01:
traditionally considered mitigating factors, and they go directly to the conduct at issue.

[00:26:59] Speaker 01:
So while we take the position that the misconduct charge should not be sustained, if it is, the penalty is outside the bounds of reasonableness, at least in part because of the failure of the decision-makers to take into consideration mitigating factors.

[00:27:18] Speaker 01:
And finally, I would like to reiterate that

[00:27:21] Speaker 01:
Also going to the severity, had Ms.

[00:27:24] Speaker 01:
Barnes' supervisor changed as had been scheduled, her leave would have been approved.

[00:27:30] Speaker 01:
Had it been up to Mr. Howder, it would have been approved.

[00:27:33] Speaker 01:
Had it been up to Commissioner Thomas, whom Ms.

[00:27:37] Speaker 01:
Philcox consulted with, it would have been approved.

[00:27:39] Speaker 01:
And Dr. Barnes' own subordinates told her that they were amenable to her taking this leave.

[00:27:45] Speaker 01:
While we recognize CFP have the authority, I think those are relevant factors to how severe the penalty is and whether or not the efficiency of the service is promoted by her removal.

[00:27:59] Speaker 01:
Thank you very much.

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

[00:28:01] Speaker 03:
The case is submitted.