[00:00:01] Speaker 04:
Good morning, we have four argued cases this morning.

[00:00:03] Speaker 04:
The first one is number 21-2142, Norris versus Commerce.

[00:00:09] Speaker 04:
Mr. Obineke, is that how you pronounce it?

[00:00:14] Speaker 02:
Obineke.

[00:00:14] Speaker 02:
Obineke.

[00:00:16] Speaker 02:
Good morning, Your Honor.

[00:00:18] Speaker 02:
May it please the court.

[00:00:20] Speaker 04:
You can take your mask off if you want.

[00:00:22] Speaker 02:
Yes, thank you.

[00:00:24] Speaker 02:
I represent Ms.

[00:00:26] Speaker 02:
Attila Norris, who is the petitioner in this case.

[00:00:31] Speaker 02:
I'd like to kind of give a brief background about this case and how we got to where we are.

[00:00:38] Speaker 02:
Ms.

[00:00:38] Speaker 02:
Norris was employed as an executive assistant for the Department of Commerce.

[00:00:44] Speaker 02:
In 2006, she was diagnosed with anxiety and depression by her psychiatrist, Dr. Reginald Diggs.

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And in 2018, following that long period of time where there was no incident whatsoever, her symptoms flared up again, and she went back to see her doctor.

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And she was given a diagnosis of megalopathy disorder and panic disorder.

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And you can find this on appendix 256.

[00:01:19] Speaker 02:
In August 2018, due to increased effects of her diagnosis, she requested reasonable accommodation in the former telework as needed.

[00:01:31] Speaker 02:
This also can be found on authentic state data.

[00:01:34] Speaker 02:
In January 2019, Patricia and I was also diagnosed in October

[00:01:43] Speaker 02:
In 2018, she was diagnosed with a lumbar disc herniation, which was giving her a lot of problems.

[00:01:53] Speaker 02:
So she managed this diagnosis.

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However, in January 2019, an orthopedist who was treating her with this herniated disc recommended that she should be allowed to telework for a full time

[00:02:11] Speaker 02:
from that January until April 25, 2019.

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So she was not on, she was not physically at work during that period of time.

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And this can be found on appendix 852 to 853.

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On April 18, 2019, she informed her supervisor that she was coming back to work.

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following the time she took off for the handling of this problem.

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And her supervisor acknowledged this email, informing her that she was coming back to work, and also told her in response that she should feel free to request FMLA if she needs it.

[00:02:58] Speaker 02:
So she returned back to the office on April 29, 2019.

[00:03:06] Speaker 02:
that can be found on Appendix 1019 to 1036.

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However, on April 25, 2019, she received a proposed removal and she was charged with a single charge of medical inability to perform her duties as executive assistant.

[00:03:31] Speaker 02:
This is on Appendix 901.

[00:03:34] Speaker 02:
You notice also allergies by the conditions when they are physically unable to perform work at USPTO campus and that there was no foreseeable end to their inability.

[00:03:49] Speaker 02:
This was obviously a surprise to her because she had earlier noted that she was coming back to work.

[00:03:57] Speaker 02:
And indeed, returned back to work on April 29, was physically present in the office.

[00:04:07] Speaker 04:
But when she returned to the office, she didn't fill the hours requirement, right?

[00:04:13] Speaker 04:
And you say that was because of annual leave and the holidays.

[00:04:19] Speaker 04:
Correct.

[00:04:21] Speaker 02:
There were some days that she took off, annually, just like any other employee.

[00:04:27] Speaker 02:
However, any week, that's any period that she was not there as required, which was she was told that she has to be there three days a week physically, or 18 hours a week.

[00:04:41] Speaker 02:
So there were some weeks that she took off just like any other employee.

[00:04:45] Speaker 02:
So she wasn't there.

[00:04:47] Speaker 02:
But her absence was not related to her medical disability.

[00:04:53] Speaker 03:
But what does it matter?

[00:04:54] Speaker 03:
The requirement was that due to her position as an executive assistant, she had to be in the office 18 hours per week.

[00:05:04] Speaker 03:
And she wasn't.

[00:05:05] Speaker 02:
But they were exceptions, though.

[00:05:07] Speaker 04:
Well, if you look at the agreement on page 679,

[00:05:11] Speaker 04:
It says when a bi-weekly week involves less than 10 work days, for whatever reason, the minimum number of days and hours in the office still must be reached.

[00:05:24] Speaker 04:
So that suggests that the minimum days and hours requirement was unaffected by holidays and vacation periods.

[00:05:34] Speaker 02:
Your Honor, it's our position that

[00:05:37] Speaker 02:
just because everybody has to be at work at some time, but there are also some times where you have to take off time because you have annual leave.

[00:05:45] Speaker 02:
The agency had the authority to disapprove that annual leave.

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And each time she applied for annual leave, they approved it.

[00:05:52] Speaker 02:
They didn't have to approve it.

[00:05:53] Speaker 03:
But that didn't mean that it subtracted from her requirement to be physically present.

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That meant that she could take annual leave for one of her telecommuting days.

[00:06:02] Speaker 03:
But if they said, you're in the office three days per week,

[00:06:07] Speaker 03:
That's a requirement.

[00:06:08] Speaker 03:
That's three days per week.

[00:06:10] Speaker 02:
Respectfully, Your Honor.

[00:06:12] Speaker 02:
If we follow that, it then means that if she requested an annual leave for 40 hours in the week, she's then therefore not entitled to the annual leave because she had to be in the office three days a week.

[00:06:26] Speaker 03:
Right.

[00:06:26] Speaker 03:
But that's not the situation here.

[00:06:28] Speaker 03:
I mean, that might be a different situation if she said, I'm going on vacation for two weeks.

[00:06:32] Speaker 03:
Here, it is very clear that she was never in the office

[00:06:36] Speaker 03:
that it required three days a week, she was piecing together a couple telecommuting days, a couple in-office days, and an annual leap day or a holiday or like that.

[00:06:47] Speaker 03:
That certainly didn't live up to the intent of the agreement that she be there physically present three days a week.

[00:06:59] Speaker 02:
We don't quite see it that way, respectfully.

[00:07:01] Speaker 02:
We see that

[00:07:03] Speaker 02:
An employee, just like any other federal employee, is entitled to be able to take off time for federal holidays or annual leave.

[00:07:11] Speaker 03:
Well, why didn't she take that annual leave during her commuting days rather than her in-office days?

[00:07:16] Speaker 03:
She was fully aware of what they expected from her.

[00:07:20] Speaker 03:
If she was taking one day of annual leave per week, she could charge it to a commuting day or a telecommuting day or an in-office day.

[00:07:28] Speaker 03:
And she, every single time, charged it to an in-office day.

[00:07:33] Speaker 02:
If we look at the time she came back from the time she went on for disability, you can see that the days that she didn't meet, the weeks that she didn't meet, that was not all through the time she came back.

[00:07:53] Speaker 02:
When she came back, there was some period where she was in the office.

[00:07:56] Speaker 02:
I think so.

[00:07:57] Speaker 03:
I think one.

[00:07:59] Speaker 03:
Out of the entire period, I think one.

[00:08:03] Speaker 03:
How is that?

[00:08:03] Speaker 03:
And then you get to the doctor's testimony and you have some on your side, you have some on the other side.

[00:08:09] Speaker 03:
The administrative judge looked at both of them and found the one that supported the government's position more credible.

[00:08:15] Speaker 03:
What do we do with that?

[00:08:16] Speaker 03:
We can't disagree with that fact-finding and that determination.

[00:08:22] Speaker 02:
If we look at the administrative judge's findings in terms of the medical report, we'll find that

[00:08:30] Speaker 02:
the administrative judge disagreed with half of her, the current routine psychiatrist, who says that she was fully recovered and able to come back to work without restrictions.

[00:08:41] Speaker 02:
And there's nothing that was presented on the other side that showed that's not actually the fact.

[00:08:48] Speaker 03:
She was... But the administrative judge gave very quotient reasons for why she was not accepting that opinion, that that psychiatrist did not have the full record

[00:08:58] Speaker 03:
of your client's medical history.

[00:09:01] Speaker 03:
She did not know the history of the request for accommodations.

[00:09:05] Speaker 03:
She had only the reported symptoms from your client for a much shorter period of time.

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And so she's not just arbitrarily rejected this.

[00:09:14] Speaker 03:
She's rejected it for good reasons.

[00:09:16] Speaker 03:
How can we disturb that finding?

[00:09:19] Speaker 02:
You know, the treating psychiatrist, Dr. Bell, actually saw the petitioner

[00:09:25] Speaker 02:
much longer period of time than Dr. Biggs, that they now believe should be the medical opinion they should follow in this case.

[00:09:35] Speaker 02:
And even Dr. Biggs himself did say that the Petition Act is able to come back and perform our duties without restriction.

[00:09:43] Speaker 04:
I found it kind of odd that Dr. Beal's reports didn't rely on the return to work that you rely on so heavily in your opening brief here.

[00:09:55] Speaker 04:
She didn't say that these efforts to return to work showed that she was able to return to work.

[00:10:02] Speaker 04:
She relied on her own assessment.

[00:10:06] Speaker 02:
I don't know if I understand what you're saying.

[00:10:09] Speaker 02:
You say that she relied only on her own assessment of... Yeah, she didn't.

[00:10:13] Speaker 04:
As I read the reports, maybe I'm wrong about this, she did not rely on the fact that six months, eight months earlier, the appellant had, in fact, returned to work for several pay periods.

[00:10:29] Speaker 04:
That was not part of Dr. Beale's assessment.

[00:10:35] Speaker 02:
Well, Dr. Beale examined the appellant.

[00:10:39] Speaker 02:
And at the time that she went to see Dr. Beale, she was actually off her medication.

[00:10:43] Speaker 02:
So she was doing very well.

[00:10:45] Speaker 02:
So based on that assessment, on the full examinations, she concluded that she's able to go to work.

[00:10:52] Speaker 02:
And the appellant herself also believes that she was able to return to work.

[00:10:57] Speaker 02:
If we look at the record carefully, we'll see that the reason why the appellant actually was not in the office physically for a little period of time was because of her back.

[00:11:09] Speaker 02:
It wasn't because of a psychiatric issue.

[00:11:13] Speaker 02:
So once the back issue was resolved, she was ready to come back to work.

[00:11:17] Speaker 02:
And she actually did come back to work.

[00:11:21] Speaker 02:
So we are contending that.

[00:11:24] Speaker 02:
In this particular case, Dr. Bell's opinion and even Dr. Biggs' opinion, which was stated in January and also in January 2019 and December 2018, stated clearly that the petitioner was free to come back to work.

[00:11:43] Speaker 02:
Even the restriction that Dr. Biggs placed on her was just that she should

[00:11:49] Speaker 02:
be able to telework two days a week, which was already her schedule.

[00:11:53] Speaker 02:
She was already teleworking two days a week and was coming to the office three days a week.

[00:11:57] Speaker 02:
So we were actually, indeed, of the opinion that the finding by the administrative judge that she was not fully recovered was not supported by the evidence.

[00:12:15] Speaker 02:
Uh, so, so we believe that that was an error.

[00:12:19] Speaker 02:
I'm actually very fast.

[00:12:22] Speaker 04:
Okay.

[00:12:22] Speaker 04:
Do you want to save your bubble time?

[00:12:24] Speaker 02:
Uh, yes.

[00:12:25] Speaker 02:
I like to save my bubble time.

[00:12:26] Speaker 04:
Okay.

[00:12:26] Speaker 04:
Thank you.

[00:12:32] Speaker 04:
Ms.

[00:12:32] Speaker 04:
Westerkamp.

[00:12:33] Speaker 00:
Good morning, Your Honors and may it please the court.

[00:12:35] Speaker 00:
Um, this is the quintessential case where an employee was removed because of a medical inability to do her job and not for taking

[00:12:44] Speaker 00:
leave or a familiar leave and on appeal, she's only challenging the factual findings of the board.

[00:12:49] Speaker 00:
And just to talk about a few things here.

[00:12:51] Speaker 03:
Well, could you focus on, I guess, the post-proposed removal period where she did actually attempt to come back to work and worked, you know, arguably, I mean, depending on whether you count the annual leave and holidays or not, that required time.

[00:13:11] Speaker 00:
Yes, Your Honor.

[00:13:11] Speaker 00:
So with that,

[00:13:13] Speaker 00:
time periods is roughly April 25th through July 2019.

[00:13:19] Speaker 00:
The board determined that Ms.

[00:13:20] Speaker 00:
Morris only met the requirement during, and that was six pay periods, of one pay period where she actually complied with being at the office three days a week and up to the required 18 hours.

[00:13:34] Speaker 00:
And for the rest, she hadn't.

[00:13:36] Speaker 03:
Right.

[00:13:36] Speaker 03:
She, you know, she pieced together a couple days and leave and stuff like that.

[00:13:40] Speaker 03:
But during that period, is there anything in the record that suggests an agency said, you can't use annual leave or a holiday or sick leave as one of your three in-office days?

[00:13:54] Speaker 00:
Well, first of all, all of her leave requests were approved.

[00:13:57] Speaker 00:
So that was not just via email.

[00:13:58] Speaker 03:
Well, that's what I'm kind of getting at.

[00:14:01] Speaker 03:
I mean, I understand your position that in office means in office and that annual leave doesn't count.

[00:14:09] Speaker 03:
But I just wonder, because it's not altogether clear to me that that's true.

[00:14:13] Speaker 03:
I mean, your friend makes a good point.

[00:14:15] Speaker 03:
If she asked for a week of vacation, she would be technically violating the three days in.

[00:14:20] Speaker 03:
But I assume you agree that she could ask for a week of vacation and still meet her work schedule as long as it was approved.

[00:14:30] Speaker 03:
It was it and I said, I don't know that this makes much difference really, but was it made because the agency officials that were approving the leave also must have knew about her work schedule and must have known that she wasn't actually working three days and she was using leave for one of those on almost every pay period.

[00:14:51] Speaker 03:
Did they ever inform her that that's not okay?

[00:14:54] Speaker 00:
I believe your honor, there was a meeting

[00:14:56] Speaker 00:
with Ms.

[00:14:57] Speaker 00:
Karen Young, who was her first line supervisor, and Judge Rogers, who was the second line in May 2019, where they did talk about what her requirements were and that she did need to be in the office for three days a week.

[00:15:09] Speaker 00:
And even part of that, even during the pendency between the proposed removal and her removal, Ms.

[00:15:15] Speaker 00:
Norris continued to have additional accommodation requests, such as asking for 48 hours advance notice before having to be on campus.

[00:15:22] Speaker 00:
extra time on the weekends to do work.

[00:15:24] Speaker 00:
And so, and moreover, what's also important here is that with the proposed removal, it looked at everything up to April 25, 2019, and then the deciding official, Mr. Vlachek, I'm not sure if I'm saying that right, he testified that he only looked at what was in the notice of proposed removal and didn't consider that interim time period.

[00:15:48] Speaker 00:
But even so, if... Well, sure.

[00:15:52] Speaker 03:
I mean, everything up to that notice of proposed removal supports you entirely.

[00:15:56] Speaker 03:
There's not a single pay period.

[00:15:59] Speaker 03:
Most of that was she was not in the office at all or didn't work at all.

[00:16:02] Speaker 03:
And some earlier in that period was minimal.

[00:16:07] Speaker 03:
But I thought there was also precedent that if it's an inability to work, if she's conceded to the board that she's recovered between the time of the proposed removal

[00:16:18] Speaker 03:
by the time she gets to the board that that's, or the removal, that that's a factor the board should consider.

[00:16:26] Speaker 03:
And that's the period your friend's concentrating on from the date she gets a proposed removal and decides she's coming back to work.

[00:16:37] Speaker 00:
Yes, I'm following your honor.

[00:16:39] Speaker 00:
And with that, I think it's actually even more expansive than that.

[00:16:42] Speaker 00:
And it's from the date of proposed removal all the way up to the date of the hearing.

[00:16:46] Speaker 00:
And so that was in January of 2021.

[00:16:48] Speaker 00:
And so there is that standard that if an employee... The date of the hearing before the board.

[00:16:53] Speaker 00:
Correct.

[00:16:55] Speaker 00:
But there is the standard where if an employee is removed for medical inability to perform a job, which was the case here, and then clearly and unambiguously demonstrates that she's recovered, then it no longer promotes the efficiency of service to keep that employee removed.

[00:17:10] Speaker 00:
But again, that gets to the testimony of Dr. Bell.

[00:17:12] Speaker 00:
which the board determined was not as primitive as that of Dr. Biggs.

[00:17:17] Speaker 00:
For instance, Dr. Bell was not even aware that Ms.

[00:17:20] Speaker 00:
Norris had been diagnosed with panic attacks and that according to Dr. Biggs' notes, which had been submitted to the agency, that the workplace environment was a main stressor.

[00:17:33] Speaker 00:
And in fact, Dr. Bell testified that she agreed that if Ms.

[00:17:39] Speaker 00:
Norris were to return to the same

[00:17:41] Speaker 00:
work environment and work situation, and I'll represent that Judge Rogers is still there and Ms.

[00:17:46] Speaker 00:
Yelling is also still there, that that could be a stressor and that could be a trigger.

[00:17:51] Speaker 00:
And I think the exact quote from Dr. Bell was, this is an appendix, page 1260, she might be able to and she might do well this time, but again, we don't know.

[00:18:02] Speaker 00:
And at 1259, it's much better that she should not be working with the same supervisor that she had the issue with.

[00:18:08] Speaker 00:
And so the board,

[00:18:09] Speaker 00:
looking at the appropriate value of those statements as well as weighting credibility, determined that it wasn't clear that Ms.

[00:18:17] Speaker 00:
Norris was recovered clearly and unambiguously enough to return to work.

[00:18:21] Speaker 04:
So the one thing that seems to me perhaps missing from the Board's decision here

[00:18:29] Speaker 04:
is an assessment of whether her work history in 2019, when she came back, was probative of her ability in the future to satisfy the three-day, 18-hour requirement.

[00:18:46] Speaker 04:
AJ simply says, oh, well,

[00:18:48] Speaker 04:
She didn't strictly comply with the three-day, 18-hour requirement, which I think is true.

[00:18:56] Speaker 04:
But AJ didn't say, well, she came close, and that shows or doesn't show that she could perform the job in the future.

[00:19:06] Speaker 00:
Well, I think, Your Honor, with that, part of it was, I believe, is that that had been raised at the hearing

[00:19:18] Speaker 00:
But with this, she had determined, she looked at that because part of the argument was, well, during that six-week period, she had taken an approved leave in FMLA, except the board determined, again, that there was only that one pay period where she actually met the requirement.

[00:19:36] Speaker 04:
I understand that, but still, she came close in other pay periods.

[00:19:40] Speaker 04:
And you would think that that situation, that record,

[00:19:46] Speaker 04:
might have some bearing on whether in the future she could satisfy the requirements, and yet the A.J.

[00:19:53] Speaker 04:
doesn't assess that evidence in that context.

[00:19:59] Speaker 00:
But I think the Board did look at that, and also even more current in time was Dr. Bell's testimony

[00:20:08] Speaker 00:
And even during that period of time, the six weeks, the board noted that the latest note from Dr. Biggs still said that she had this condition and it would be indefinite.

[00:20:22] Speaker 04:
But I'm right.

[00:20:24] Speaker 04:
Am I not that the A.J.

[00:20:25] Speaker 04:
didn't say, I discount this evidence as bearing on her future fitness?

[00:20:33] Speaker 04:
That was simply a sort of a technical approach.

[00:20:36] Speaker 04:
She didn't satisfy it.

[00:20:38] Speaker 04:
there were crimes except for one pay period.

[00:20:41] Speaker 00:
I think how you've characterized it, I would accept that, Your Honor, and I think, too, with looking at it, the deciding official testified that, again, he never considered that time period.

[00:20:54] Speaker 00:
And moreover, when he was looking at

[00:20:57] Speaker 00:
the notice of proposed removal, he really did consider it appears that there's no end in sight and it is an essential function of her position that she has to be at work between the core hours of 9 to 3 p.m., whether it be telework or on-site, on campus.

[00:21:12] Speaker 00:
And in this instance, again, although Ms.

[00:21:15] Speaker 00:
Morris did in one paid period meet the standard

[00:21:19] Speaker 00:
still during that entire time, there were additional accommodation requests and she even said in an email to her supervisors, due to my medical condition, I may not always be able to be on campus.

[00:21:30] Speaker 00:
So the agency had a lot of information from Ms.

[00:21:35] Speaker 00:
Norris about her medical condition and her inability to

[00:21:38] Speaker 00:
to do the job and do the job on site as required.

[00:21:42] Speaker 01:
Can you return to something that came up just a little while ago?

[00:21:48] Speaker 01:
I think you were asked a question about what, if anything, the record says about whether individual, whether there were individual approvals

[00:22:02] Speaker 01:
of each of the leaves during the most recent six pay periods that came

[00:22:17] Speaker 01:
before and in particular whether she might have been led to understand or did understand that when the approvals of those leaves took place that they were not going to count against, they were not going to count against her in terms of meeting the requirement even though the agreement

[00:22:43] Speaker 01:
indicates that they probably should.

[00:22:45] Speaker 01:
Because if she had been told these won't count, then maybe the fact that she didn't meet the requirement for five of the six periods is not that probative all by itself of whether she would be able to in the future if she understood that the rule was this rule and there was not going to be an exception to it.

[00:23:10] Speaker 01:
Yes.

[00:23:10] Speaker 00:
Is that clear enough?

[00:23:11] Speaker 00:
It is.

[00:23:12] Speaker 00:
And I think the best part of the record I can point out or two, and I don't, and I think the deciding official testified that he did not consider any of that approval.

[00:23:23] Speaker 00:
As I said, but.

[00:23:24] Speaker 01:
This is all at the board.

[00:23:26] Speaker 00:
It's all at the board.

[00:23:28] Speaker 00:
And, but what the representations that the agency made to her as to the requirements, I think at the record 1139 through 44,

[00:23:38] Speaker 00:
where there is a email exchange back and forth about that May 2019 meeting with what the expectations were and what some of Ms.

[00:23:46] Speaker 00:
Norris's further accommodation requests were.

[00:23:48] Speaker 00:
And again, the board actually noted that she was not removed.

[00:23:53] Speaker 00:
This was not a retaliation case.

[00:23:55] Speaker 00:
She was not removed for taking the annual leave.

[00:23:58] Speaker 01:
Was there a board finding?

[00:24:00] Speaker 01:
that she did not understand that those approvals would not count in the relevant time she had to be in the office.

[00:24:12] Speaker 01:
Or did nobody really address that question?

[00:24:14] Speaker 01:
Because the evidentiary value for the forward-looking ability would seem to be dependent in some respect on whether the failure to meet the requirement for five of those six work periods was because she understood that she could, as opposed to she just couldn't bring herself to.

[00:24:40] Speaker 00:
was developed more, and even as the board had stated that was brought up as a harmful procedural error argument and was argued at, I think, at the hearing.

[00:24:51] Speaker 00:
And so I don't, in the sense of whether her leave was explained during that pendency of removal, that whether that was explained to her or not, I'm not quite sure that the record answers that question.

[00:25:06] Speaker 00:
But even so, the standard, she could have at

[00:25:10] Speaker 00:
at the board hearing where Dr. Bell's testimony could have shown that she was clearly and unambiguously recovered, except the board determined again that that testimony was not as probative because Dr. Bell

[00:25:24] Speaker 00:
was not aware that Ms.

[00:25:26] Speaker 00:
Norris even had prior accommodations, was not aware that she was diagnosed with the major depressive disorder, but was not aware of panic attacks.

[00:25:33] Speaker 00:
Although Ms.

[00:25:34] Speaker 00:
Norris had provided all of Dr. Bix's notes to the agency, Dr. Bell testified that she never saw Dr. Bix's notes, and so she also didn't know about what the job requirements were even for Ms.

[00:25:46] Speaker 00:
Norris' position.

[00:25:46] Speaker 00:
And so I think here, regardless of that six-week period, over a year and a half later,

[00:25:54] Speaker 00:
the board determined that the testimony that Ms.

[00:25:57] Speaker 00:
Norris presented from Dr. Bell just was not as probative as the notes from Dr. Biggs, which indicated that she was not fully recovered.

[00:26:05] Speaker 04:
I think Dr. Bell didn't address the return to work evidence as supporting the notion that she could do the job.

[00:26:13] Speaker 00:
That's right, and she also didn't understand, and she even testified that

[00:26:20] Speaker 00:
If she were to return to the same workplace dresser, she could not predict what would happen.

[00:26:24] Speaker 00:
And if there are no further questions, we request that the court affirm the court's decision.

[00:26:30] Speaker 04:
Thank you.

[00:26:35] Speaker 04:
OK, thank you.

[00:26:39] Speaker 02:
I'm going to go back to the issue of when she returned back to the office and what happened.

[00:26:47] Speaker 02:
Yes, that is correct.

[00:26:48] Speaker 04:
But you never put on any testimony that her return to the office during those six pay periods shows that she could do it in the future.

[00:26:57] Speaker 04:
There isn't any testimony by a medical doctor to that effect, right?

[00:27:05] Speaker 02:
That is correct.

[00:27:07] Speaker 02:
But the way we're looking at the return to the office and also the time that she took up, they were all approved.

[00:27:17] Speaker 02:
Since this is a proposal, she was removed from medical inability to perform.

[00:27:22] Speaker 02:
We believe that if they were to look at the time she took off, for that to be held against her, it has to be related to her diagnosis.

[00:27:33] Speaker 02:
In this particular case, they were not.

[00:27:35] Speaker 02:
If they believe that she did not meet the time in office requirement, it should have been a different kind of proposal for disciplinary action.

[00:27:44] Speaker 02:
It wasn't.

[00:27:46] Speaker 02:
They say that she was not available to perform because of her medical condition.

[00:27:51] Speaker 02:
But she came back.

[00:27:52] Speaker 02:
She performed.

[00:27:53] Speaker 02:
They didn't question the work.

[00:27:54] Speaker 02:
The work she did when she came back.

[00:27:57] Speaker 02:
The only thing they are questioning is

[00:27:59] Speaker 02:
the time she took off.

[00:28:00] Speaker 02:
And the administrative judge stated that the time she took off showed that she was not able to make the time requirement in the office.

[00:28:08] Speaker 02:
If that is indeed the case, that would be a proposal of a disciplinary action.

[00:28:13] Speaker 02:
They did not propose a disciplinary action.

[00:28:15] Speaker 02:
They say that she's unavailable.

[00:28:17] Speaker 02:
She was unavailable.

[00:28:18] Speaker 02:
Her medical condition had significantly improved.

[00:28:21] Speaker 02:
The reason why she left was because of her back.

[00:28:24] Speaker 02:
She came back.

[00:28:25] Speaker 02:
The back issue resolved.

[00:28:28] Speaker 02:
Her psychiatric issue resolved, as stated by Dr. Bale and even Dr. Biggs.

[00:28:32] Speaker 02:
And let me say one more thing about Dr. Biggs' medical notes, which was mentioned earlier.

[00:28:38] Speaker 02:
The agency never actually saw Dr. Biggs' notes.

[00:28:42] Speaker 02:
They never saw her treating records.

[00:28:44] Speaker 02:
The only treating records that were seen by the agency was Dr. Bell's.

[00:28:49] Speaker 02:
The only thing that Dr. Biggs submitted was a form that was filled out.

[00:28:54] Speaker 02:
And the agency never indeed requested that the actual diagnosis and treating records from Dr. Biggs be submitted.

[00:29:01] Speaker 02:
They never requested that.

[00:29:03] Speaker 02:
The only treating records we have are from Dr. Bell.

[00:29:06] Speaker 02:
And she saw Dr. Bell's.

[00:29:08] Speaker 02:
as at the time of the pairing, one out of four times.

[00:29:11] Speaker 02:
That's more times than she sort of predicts.

[00:29:13] Speaker 02:
So we believe that Dr. Bell's diagnosis and prognosis in this case, saying that she had fully recovered and should be able to go back to work without restrictions, should be what should carry the bay in this case here.

[00:29:30] Speaker 02:
That's all I have.

[00:29:30] Speaker 02:
Thank you so much.

[00:29:31] Speaker 04:
Okay.

[00:29:32] Speaker 04:
Thank you very much.

[00:29:32] Speaker 04:
Thank both counsel and cases submitted.