[00:00:00] Speaker 02:
The next case for argument is 23-1825, Argo Wall versus Department of Transportation.

[00:00:30] Speaker 03:
May it please the court, George Ciusi, for petitioner?

[00:00:34] Speaker 03:
The board affirmed petitioner's removal deferring to credibility determinations made by the administrative judge.

[00:00:41] Speaker 03:
Those determinations are contrary to 40 years of jurisprudence and must be reversed.

[00:00:48] Speaker 03:
Since its inception, the board and this court on review of the board have consistently defined the circumstances

[00:00:57] Speaker 03:
in which an AJ's credibility determination can constitute substantial evidence under 7703C.

[00:01:05] Speaker 03:
Briefly stated, an AJ is allowed to consider a witness's credibility only when there is conflicting testimony.

[00:01:14] Speaker 03:
An unsworn hearsay statement can be credited over live testimony only if it is corroborated by other credible evidence.

[00:01:24] Speaker 03:
In this case, the AJ simply ignored those principles when she found the supervisor's description of a question she asked petitioner to be more credible than petitioner's testimony because it was supported by statements in the proposal.

[00:01:41] Speaker 03:
That finding inexplicably ignored that the supervisor's testimony regarding the question she asked was, in fact, totally consistent with petitioner's testimony.

[00:01:54] Speaker 03:
Given that the testimony regarding the question asked was not in conflict, there was no credibility determination to be made.

[00:02:02] Speaker 02:
I mean, we're not fact finders here.

[00:02:05] Speaker 02:
So I'm not sure I want to spend the rest of my life going through the facts here.

[00:02:09] Speaker 02:
But I was quite confused by, can you tell us what evidence you're talking about here?

[00:02:15] Speaker 02:
What evidence he was not allowed to credit the testimony of Ms.

[00:02:19] Speaker 02:
Skirlin versus the petitioner on?

[00:02:22] Speaker 03:
Yes, Judge.

[00:02:24] Speaker 03:
Element one of the charge that led to Petitioner's removal was that Gerland asked Petitioner whether she had ever destroyed a document presented to her.

[00:02:38] Speaker 03:
Petitioner alleged, and that Petitioner denied doing so.

[00:02:43] Speaker 03:
Petitioner claimed in her reply and in testimony at the hearing that that was not the question that Gerland actually asked her.

[00:02:52] Speaker 03:
The question that Gerland asked her was whether she had destroyed a document that she refused to sign.

[00:02:59] Speaker 02:
As opposed to one that she had signed and then destroyed?

[00:03:06] Speaker 02:
Yes.

[00:03:06] Speaker 03:
And you have to understand, Judge, Petitioner was the secretary of the agency, the Maritime Administration.

[00:03:13] Speaker 02:
And is that because in this record we're talking about several different instances that people got confused about?

[00:03:20] Speaker 03:
No.

[00:03:20] Speaker 02:
So it's just a matter of whether or not she destroyed a document that she had signed versus one that she hadn't signed?

[00:03:30] Speaker 02:
Well, yes.

[00:03:33] Speaker 03:
She is authorized.

[00:03:35] Speaker 03:
In her capacity as secretary, petitioner signed documents.

[00:03:40] Speaker 03:
Among them were withdrawal requests, which allowed

[00:03:44] Speaker 03:
companies to withdraw funds from accounts controlled by the agency.

[00:03:51] Speaker 03:
The agency admitted that if she inadvertently signed such a document, she was authorized to destroy it, because otherwise the withdrawal request could be honored when it was inappropriate to do so.

[00:04:05] Speaker 03:
So the difference between destroying a document that you refuse to sign and destroying a document that you had

[00:04:13] Speaker 03:
been authorized to design, but authorized to destroy is critical here.

[00:04:22] Speaker 02:
So you're saying that when she was asked the question, it was a different question.

[00:04:27] Speaker 02:
It was a question about whether you had destroyed a document that you had refused to sign?

[00:04:33] Speaker 03:
Correct.

[00:04:34] Speaker 02:
And did the supervisor misunderstand that?

[00:04:37] Speaker 03:
No, the supervisor understood it precisely.

[00:04:40] Speaker 03:
Why the supervisor on direct?

[00:04:44] Speaker 02:
And what is her position?

[00:04:45] Speaker 02:
That she only destroyed a document that she had signed?

[00:04:48] Speaker 02:
Yes.

[00:04:50] Speaker 03:
That she was authorized to do and that the agency is not holding her responsible for.

[00:04:56] Speaker 03:
The agency is only holding her responsible for signing a document that she refused to sign.

[00:05:03] Speaker 01:
for destroying a document that she refused to sign?

[00:05:05] Speaker 01:
Is that what you meant?

[00:05:07] Speaker 03:
She did not.

[00:05:08] Speaker 01:
I feel like we're saying who's on first.

[00:05:10] Speaker 01:
OK, so let me just ask you a question.

[00:05:12] Speaker 01:
Sure.

[00:05:14] Speaker 01:
You talk about in the briefing as attachment one and attachment three.

[00:05:17] Speaker 01:
I feel like that's in the briefing a lot.

[00:05:18] Speaker 03:
Correct.

[00:05:18] Speaker 01:
Can you just tell us clearly, did she destroy attachment one?

[00:05:24] Speaker 01:
I'll start there.

[00:05:25] Speaker 03:
And she admitted that she destroyed attachment one.

[00:05:28] Speaker 02:
And in her testimony, And was it signed?

[00:05:31] Speaker 02:
Did she destroy it?

[00:05:32] Speaker 02:
It seems to be a big deal whether she destroyed a signed document or an unsigned document.

[00:05:36] Speaker 03:
Yes, she testified clearly.

[00:05:38] Speaker 03:
And in fact, Simmons, the unsworn.

[00:05:41] Speaker 03:
No, no, just giving the answer.

[00:05:43] Speaker 03:
Yes, she signed it and then realized that she should not have signed it and destroyed it.

[00:05:48] Speaker 01:
OK, so that's attachment one.

[00:05:50] Speaker 03:
Yes.

[00:05:51] Speaker 01:
Let's turn to attachment three.

[00:05:52] Speaker 03:
Yes.

[00:05:53] Speaker 01:
Can you speak to answer those same questions about destruction and signing?

[00:05:59] Speaker 03:
Petitioner testified at the hearing that Simmons gave her attachment three.

[00:06:06] Speaker 03:
And she looked at it, and it was inappropriate.

[00:06:09] Speaker 03:
So she handed it back to Simmons.

[00:06:12] Speaker 03:
And she did not destroy attachment three.

[00:06:16] Speaker 03:
And there was contradictory.

[00:06:18] Speaker 03:
There was no contradictory testimony to that effect.

[00:06:21] Speaker 02:
So the argument you started with is that there's never been this kind of evidentiary holding in decades, is that she testified only that she did not destroy a document that was not signed.

[00:06:41] Speaker 03:
which is the charge that she is being held responsible for.

[00:06:45] Speaker 04:
Can you show me where in the proposed removal that she was charged with destroying a document that she refused to sign?

[00:06:55] Speaker 03:
The decision says that she.

[00:06:57] Speaker 03:
No, no, no.

[00:06:58] Speaker 04:
You know what the proposed removal is.

[00:07:00] Speaker 03:
I'm sorry, yes.

[00:07:00] Speaker 04:
Tell me the proposed removal where she was charged with what you're saying she was charged with, i.e.

[00:07:07] Speaker 04:
destroying a document she refused to sign.

[00:07:10] Speaker 03:
She, the truck.

[00:07:11] Speaker 04:
Because the trucks here is,

[00:07:14] Speaker 04:
Not the actual description.

[00:07:16] Speaker 04:
It's lying to Ms.

[00:07:17] Speaker 04:
Gerland, right?

[00:07:18] Speaker 04:
Yes.

[00:07:19] Speaker 04:
So she showed me in the proposed removal where it lines up with the charge your saying was made against her.

[00:07:27] Speaker 03:
The proposed removal does not refer to attachment three.

[00:07:31] Speaker 03:
The proposed removal charges her with untruthfully saying that she did not destroy a document that was presented to her.

[00:07:42] Speaker 03:
In order for that charge to be accurate, A, the question must have been the one that she asked, and B, petitioner's response must have been untruthful.

[00:07:54] Speaker 03:
And so the only way, and the administrative.

[00:07:57] Speaker 04:
So if she destroyed a document that was presented to her and then lied about it to Ms.

[00:08:02] Speaker 04:
Gerland, the charge is supported, right?

[00:08:04] Speaker 04:
Yes.

[00:08:05] Speaker 04:
And Ms.

[00:08:05] Speaker 04:
Gerland testified that that's what she heard.

[00:08:08] Speaker 04:
And then there's- No.

[00:08:10] Speaker 03:
Ms.

[00:08:10] Speaker 03:
Gurland testified both on- No, you got Ms.

[00:08:13] Speaker 04:
Gurland to admit on cross to something that wasn't in the proposed removal about the charge.

[00:08:19] Speaker 04:
Throughout this case, it's about lying about destroying a document.

[00:08:25] Speaker 04:
No.

[00:08:26] Speaker 04:
That's what the proposed removal says.

[00:08:27] Speaker 04:
Yes, but- You can't recreate the charge during cross exam during a hearing.

[00:08:34] Speaker 03:
Ms.

[00:08:34] Speaker 03:
Gurland-

[00:08:35] Speaker 03:
admitted, and the administrative judge spent a page and a half clarifying the question that Miss Gerland actually asked.

[00:08:48] Speaker 03:
And the question Gerland actually asked was, did you destroy a document presented to you that you refused to sign?

[00:08:58] Speaker 03:
That's the question Gerland admitted she asked.

[00:09:00] Speaker 03:
And that's why a credibility determination, finding her statement in the proposal was more credible than the petitioner's denial, is simply

[00:09:11] Speaker 03:
Under Tudor, it's unjustifiable.

[00:09:18] Speaker 02:
So under your view of what went on here, why didn't she then say, well, what she meant was she didn't refuse to sign a document.

[00:09:30] Speaker 02:
She didn't destroy a document that she had not already signed.

[00:09:35] Speaker 02:
She said that.

[00:09:37] Speaker 02:
Where?

[00:09:39] Speaker 03:
on pages 146 to 147?

[00:09:42] Speaker 03:
In response to the proposed removal?

[00:09:45] Speaker 03:
No, no.

[00:09:45] Speaker 03:
The proposed removal, she said in her reply to the proposed removal, and this is a page 61, that when Gerland asked her if she had destroyed a document she had refused to sign, petitioner said, I told her that I destroyed a document that I had signed.

[00:10:09] Speaker 03:
And Gerland said, we're not talking about that.

[00:10:11] Speaker 03:
We're talking about a document that you refuse to sign.

[00:10:15] Speaker 03:
And that's what the judge spent a page and a half clarifying with Gerland, who admitted that that was the question that she was asked, that she asked Petitioner.

[00:10:27] Speaker 04:
It's fundamental to the- And Simmons, in her statement, said that she ripped up a document.

[00:10:33] Speaker 04:
Absolutely.

[00:10:34] Speaker 04:
Another one.

[00:10:34] Speaker 04:
Simmons says that- Why isn't that substantial evidence?

[00:10:38] Speaker 03:
Because under Bornenkopf, a 1981 case which this court has accepted, hearsay evidence such as Simmons' statement, it has to be evaluated in terms of, number one, was it sworn?

[00:10:57] Speaker 03:
It was not.

[00:10:59] Speaker 03:
Number two, was the witness available to testify?

[00:11:02] Speaker 03:
She did not.

[00:11:05] Speaker 03:
She was available.

[00:11:06] Speaker 03:
She did not testify.

[00:11:07] Speaker 03:
Number three was the evidence inconsistent with any testimony.

[00:11:14] Speaker 03:
Yes, petitioner denied at the hearing.

[00:11:18] Speaker 04:
And the administrative judge didn't believe the petitioner.

[00:11:20] Speaker 03:
I'm sorry?

[00:11:21] Speaker 04:
The administrative judge didn't believe the petitioner.

[00:11:23] Speaker 04:
The judge made credibility findings saying essentially that her testimony was evasive and inconsistent.

[00:11:33] Speaker 03:
That was not with respect to attachment three.

[00:11:38] Speaker 03:
That was with respect to the first part of it, which was the question asked.

[00:11:45] Speaker 03:
But even then, Judge.

[00:11:47] Speaker 01:
Can you point us to where the evasive and inconsistent part is just limited to a given document?

[00:11:53] Speaker 01:
I want to at least make sure I follow the argument you're making with respect to that.

[00:11:56] Speaker 03:
The evasive and inconsistent was with respect to petitioners

[00:12:03] Speaker 03:
testimony regarding elements two and three.

[00:12:05] Speaker 03:
In other words, there was a subsequent meeting with Gerland.

[00:12:09] Speaker 03:
And Gerland accused Petitioner of not being totally forthcoming and then trying to manipulate her into not investigating further.

[00:12:19] Speaker 03:
But Judge, in the Valerius Simons case, which is a board decision, which I cite in my reply brief, the board held clearly

[00:12:29] Speaker 03:
that even if a judge were to find the appellant not credible, there must be credible live testimony to oppose it.

[00:12:42] Speaker 03:
That's a board decision, which they don't cite here.

[00:12:45] Speaker 03:
The board doesn't cite Bornenkopf.

[00:12:48] Speaker 03:
The board doesn't even use the term hearsay to describe Simmons' statement.

[00:12:54] Speaker 03:
What I'm suggesting with respect to element one is that the board's decision to affirm element one based on a hearsay statement from a witness who was not called and is- But it's also based on Gerland's testimony.

[00:13:11] Speaker 03:
Gerland had no firsthand knowledge whether attachment three was destroyed or not.

[00:13:18] Speaker 03:
She heard it from Simmons, double hearsay.

[00:13:24] Speaker 04:
But the board's allowed to rely on hearsay.

[00:13:27] Speaker 04:
The AJ had Gerland before him or her and was able to assess Gerland's credibility.

[00:13:34] Speaker 03:
Not with respect to whether petitioner destroyed attachment three.

[00:13:39] Speaker 03:
OK.

[00:13:40] Speaker 03:
But before I leave this, Judge, if the court were to hold that an unsworn statement from a witness who was available but did not testify

[00:13:53] Speaker 03:
that is directly contradicted by live testimony to the contrary.

[00:13:59] Speaker 03:
That would be an extraordinary decision.

[00:14:01] Speaker 02:
OK.

[00:14:01] Speaker 02:
Well, you're into your rebuttal.

[00:14:02] Speaker 02:
So can I ask you one housekeeping note before you leave, which is this all went down almost 10 years ago.

[00:14:10] Speaker 02:
So what relief are you seeking here?

[00:14:14] Speaker 03:
Reinstatement and back pay, Your Honor.

[00:14:28] Speaker 00:
Good morning.

[00:14:28] Speaker 00:
May it please the court?

[00:14:30] Speaker 00:
The board correctly sustained Ms.

[00:14:31] Speaker 00:
Agarwal's removal for conduct demonstrating untrustworthiness.

[00:14:35] Speaker 00:
The board's findings are supported by substantial evidence, and a decision affirming would not contradict any longstanding precedent.

[00:14:44] Speaker 02:
So do you appreciate and understand the argument your friend's making with respect to the inability of the AHA to assess credibility in these circumstances?

[00:14:54] Speaker 02:
Can you respond to that?

[00:14:56] Speaker 00:
Yes, Your Honor, so I'd like to take a step back if you'll let me, because I have to explain there's two different documents here and two different incidents.

[00:15:06] Speaker 00:
And Ms.

[00:15:07] Speaker 00:
Simmons is, according to Ms.

[00:15:08] Speaker 00:
Simmons' statement, which is, we acknowledge it's unsworn hearsay statement, in September 2014, there was a document she identified as attachment one.

[00:15:18] Speaker 00:
Ms.

[00:15:18] Speaker 00:
Agarwal signed that document, then looked at it and said, oh, I shouldn't have signed that, and shredded it.

[00:15:23] Speaker 00:
That incident is really not the basis for what happened here.

[00:15:28] Speaker 00:
Then Ms.

[00:15:29] Speaker 00:
Simmons said, in October 2014, I brought a document to Ms.

[00:15:33] Speaker 00:
Agarwal.

[00:15:34] Speaker 00:
This document had a different format.

[00:15:37] Speaker 00:
Ms.

[00:15:37] Speaker 00:
Agarwal did not sign it and then destroyed it.

[00:15:41] Speaker 00:
So when Ms.

[00:15:43] Speaker 00:
Gerland then heard about this and asked Ms.

[00:15:47] Speaker 00:
Agarwal, did you destroy a document presented to you for signature, they seemed to be making the argument that,

[00:15:54] Speaker 00:
If there was some confusion over whether she should say yes or no, but she's always said no.

[00:15:59] Speaker 00:
I destroyed unsigned documents.

[00:16:01] Speaker 00:
And if the question was, as my friend puts it, the question that Ms.

[00:16:07] Speaker 00:
Gerland asked was, did Ms.

[00:16:09] Speaker 00:
Adgerwald destroy a document that she refused to sign?

[00:16:11] Speaker 00:
That's a more specific question.

[00:16:13] Speaker 00:
And she's always said the answer to that was no, and should be no, because she denies destroying attachment three entirely

[00:16:21] Speaker 00:
without qualification.

[00:16:22] Speaker 00:
She's always denied destroying attachment three.

[00:16:24] Speaker 00:
Now, Ms.

[00:16:24] Speaker 00:
Simmons said, that's not what happened.

[00:16:27] Speaker 00:
She destroyed attachment three.

[00:16:28] Speaker 00:
And the AJ found this incredible.

[00:16:29] Speaker 02:
And so one of the arguments your friend is making is that since Ms.

[00:16:32] Speaker 02:
Simmons didn't testify, there was no competing testimony on that point.

[00:16:37] Speaker 02:
And therefore, the AJ couldn't find that.

[00:16:40] Speaker 02:
the petitioner was not credible.

[00:16:42] Speaker 00:
Yes, and that is not legally correct.

[00:16:44] Speaker 00:
This court has held numerous times, and the MSPB has held numerous times, that hearsay evidence is sufficient to be both preponderant evidence and substantial evidence.

[00:16:56] Speaker 00:
This court's decision in Cooley

[00:16:59] Speaker 00:
is instructive on that.

[00:17:01] Speaker 02:
But on the question of credibility, though, was he assessing the credibility of Ms.

[00:17:06] Speaker 02:
Garland's reliance on hearsay testimony versus the petitioner?

[00:17:12] Speaker 02:
No, Your Honor.

[00:17:12] Speaker 02:
What is the weighing of the credibility?

[00:17:14] Speaker 00:
The AJ made some interrelated findings.

[00:17:17] Speaker 00:
The first one was that the main one that drove all this is that Ms.

[00:17:20] Speaker 00:
Adderwall was not credible.

[00:17:22] Speaker 00:
Ms.

[00:17:22] Speaker 00:
Adderwall testified in her own defense, and the AJ found her to be occasionally argumentative, defensive, evasive, to have a difficulty answering questions directly.

[00:17:32] Speaker 00:
So the AJ, throughout the opinion, makes reference to that and put that into account and did not find her version of, and the board agreed with that and did not find her version of events probable.

[00:17:42] Speaker 00:
Related to that is that

[00:17:43] Speaker 00:
The A.J.

[00:17:44] Speaker 00:
found Ms.

[00:17:44] Speaker 00:
Gerland testified in person and was found to be that her version of events as she put forth in the proposed removal, even though she wasn't an eyewitness to the actual tearing, the A.J.

[00:17:56] Speaker 00:
found Ms.

[00:17:56] Speaker 00:
Gerland testified in a calm and forthright manner and that her version of events,

[00:18:01] Speaker 00:
And even though she didn't witness the terror, and she certainly was an eyewitness to events that she found demonstrated conduct, demonstrating untrustworthiness, such as that even though when she raised this issue to Miss Aguilar, Miss Gerland testified she didn't identify what the document was, who had brought it, who had complained.

[00:18:18] Speaker 00:
Miss Aguilar immediately seemed to know what document was at issue, which would seem to suggest

[00:18:24] Speaker 00:
If she had really denied it and not done anything, how would she know who had complained about her?

[00:18:28] Speaker 00:
So Ms.

[00:18:29] Speaker 00:
Gerland found that very relevant.

[00:18:31] Speaker 00:
Ms.

[00:18:31] Speaker 00:
Gerland also went through speech to them later.

[00:18:33] Speaker 04:
The AJ made specific demeanor-based credibility determinations about Ms.

[00:18:37] Speaker 04:
Gerland as well?

[00:18:38] Speaker 00:
Yes, she did, Your Honor.

[00:18:40] Speaker 00:
The AJ found that Ms.

[00:18:41] Speaker 00:
Gerland testified in a common, forthright manner.

[00:18:44] Speaker 04:
And then it didn't base credibility determinations on the unsigned document.

[00:18:48] Speaker 04:
It's just evidence of what occurred.

[00:18:50] Speaker 00:
The AJ found that because of how Ms.

[00:18:53] Speaker 00:
Agarwal testified and because she never referenced attachment three, that Ms.

[00:18:57] Speaker 00:
Simmons' version in the statement was the credible version as compared to what Ms.

[00:19:02] Speaker 00:
Agarwal was testifying about.

[00:19:04] Speaker 00:
But it wasn't just, I mean, this is not just a question of.

[00:19:08] Speaker 04:
But we can't.

[00:19:10] Speaker 04:
I mean, when we talk about credible evidence, we're talking about it in two different ways.

[00:19:15] Speaker 04:
You can't give a demeanor-based credibility determination to an unsworn statement of somebody that didn't testify.

[00:19:21] Speaker 00:
Yes, that's correct.

[00:19:22] Speaker 04:
We're not arguing.

[00:19:23] Speaker 04:
The AJ can use that as preponderant evidence in support of his or her ultimate conclusion.

[00:19:31] Speaker 00:
Yes, that is correct.

[00:19:32] Speaker 00:
It is well established that before the board hearsay is admissible, and it can constitute preponderant evidence.

[00:19:39] Speaker 00:
The question is, does it have this reliability and trustworthiness that makes it

[00:19:43] Speaker 00:
preponderant.

[00:19:44] Speaker 00:
The second issue here is that substantial evidence, which is a lower standard.

[00:19:48] Speaker 00:
And it's also well-established.

[00:19:50] Speaker 00:
In Hewley and recently in Vales Sanders, this court has repeatedly held that hearsay can certainly constitute the substantial evidence, even without corroboration, as long as the circumstances give it credibility and probative value.

[00:20:04] Speaker 00:
So my friend's arguments are sort of going back to as if we were at the board level again and saying,

[00:20:11] Speaker 00:
The Vortica factors should have been applied differently.

[00:20:14] Speaker 00:
All of the statement should have had less weight.

[00:20:16] Speaker 00:
Ms.

[00:20:16] Speaker 00:
Adderall's testimony should have been believed more.

[00:20:18] Speaker 00:
That's not the realm we're at.

[00:20:20] Speaker 00:
The question is, is there substantial evidence supporting the board's decision here?

[00:20:24] Speaker 00:
And all of that, as the AJ laid out in great detail, certainly support that there is substantial evidence here.

[00:20:34] Speaker 01:
If we were to set aside the Simmons statement, do you still believe that there's substantial evidence support for the decision?

[00:20:43] Speaker 00:
I would say yes, Your Honor, because the Simmons statement simply goes to the actual tearing.

[00:20:49] Speaker 00:
The charge is about her whole conduct in this episode in general, not just tearing a document, but how she- Well, a large part of the charge is not tearing, but lying about not tearing.

[00:21:02] Speaker 02:
Yes, correct, Your Honor.

[00:21:03] Speaker 02:
And so if that goes out under Judge Cunningham's question, what are we left with?

[00:21:08] Speaker 00:
Well, if it was believed that she didn't tear it, there would still be a question of why she was approaching Mr. Ladd and Ms.

[00:21:17] Speaker 00:
Simmons in this manner to confront them, to bully them, and to manipulate them.

[00:21:21] Speaker 00:
I suppose it could seem more reasonable if she was angry about being accused of tearing something that she didn't tear.

[00:21:27] Speaker 00:
But it was more of, really, an overall way she managed the situation of simply

[00:21:32] Speaker 00:
perhaps doing something unprofessional and digging, digging in how she mismanaged it with lying to her, how she communicated to her supervisor, how she approached Ms.

[00:21:42] Speaker 00:
Ladd and Ms.

[00:21:42] Speaker 00:
Simmons.

[00:21:42] Speaker 00:
And then the third one, going back to Ms.

[00:21:45] Speaker 00:
Gerland and saying, I talked to them.

[00:21:47] Speaker 00:
You don't need to look into it further, which, again, Ms.

[00:21:49] Speaker 00:
Gerland found very suspicious and needing to be followed up on.

[00:21:53] Speaker 00:
So they don't seem to be making any arguments about the penalty or things like that.

[00:22:01] Speaker 00:
To go to your question, I mean, it's hard to say from all the things that happened, if one went, what the rest of it would be.

[00:22:09] Speaker 00:
But it's more than just you can't tear a document.

[00:22:12] Speaker 00:
That's not simply the basis for the charge.

[00:22:15] Speaker 01:
What about opposing counsel's statements about saying that the AJA really limited the evasiveness statements to just a portion

[00:22:26] Speaker 01:
of the charges opposed to the entirety of that.

[00:22:28] Speaker 01:
Can you respond to that?

[00:22:29] Speaker 00:
Yes.

[00:22:29] Speaker 00:
Well, first of all, that appears to be a new argument that I did not see in the brief.

[00:22:33] Speaker 00:
But I do not believe that is correct.

[00:22:35] Speaker 00:
If you read, reading the AJ's opinion, the demeanor-based credibility findings are scattered throughout the opinion.

[00:22:43] Speaker 00:
And we're certainly not just limited to one element.

[00:22:46] Speaker 00:
It was all, the AJ made demeanor-based credibility

[00:22:51] Speaker 00:
credibility finance throughout to explain why she did not believe Ms.

[00:22:56] Speaker 00:
Agrawal's contentions about why she behaved in a certain way, like why she went to confront the two other employees, why she spoke to Ms.

[00:23:03] Speaker 00:
Durland in a certain way, why she was denying it.

[00:23:05] Speaker 00:
So it was not simply limited to that element.

[00:23:08] Speaker 00:
And also the argument that there was no credibility determination needed

[00:23:13] Speaker 00:
under the board case tutor is not correct.

[00:23:16] Speaker 00:
There's really an inordinate amount of weight being placed in what the question was.

[00:23:20] Speaker 00:
And that's illogical, because she's never testified there was some confusion.

[00:23:25] Speaker 00:
Or she should have answered differently.

[00:23:27] Speaker 00:
Or if she had understood the question better, she would have answered differently.

[00:23:30] Speaker 00:
And therefore, she shouldn't have been charged with this.

[00:23:32] Speaker 00:
She's not making those arguments.

[00:23:35] Speaker 00:
Even if the question was, did you destroy a document presented for you for signature that you refused to sign, she would say the answer is no.

[00:23:42] Speaker 00:
I did not deny it.

[00:23:43] Speaker 00:
And she testified that she didn't destroy it.

[00:23:46] Speaker 00:
And that was not believed based on credibility.

[00:23:49] Speaker 00:
So if there's some concurrence in the question, that doesn't mean there was not a need for credibility to findings about the truth of the answer.

[00:23:58] Speaker 00:
It's really about her answer and then how she managed it afterwards.

[00:24:02] Speaker 00:
That was the basis for the charge.

[00:24:03] Speaker 00:
So again,

[00:24:06] Speaker 00:
The citation to various board cases where, in each specific circumstance, hearsay might have been found to be less credible or for various, sometimes these bizarre cases.

[00:24:18] Speaker 00:
It's hard to, you know, the AJ or the board focused on one type of testimony over the other.

[00:24:23] Speaker 00:
There is no per se rule that hearsay cannot be preponderant evidence, and it certainly can be substantial evidence.

[00:24:28] Speaker 00:
So hearing no further questions, I will conclude and say this court should affirm.

[00:24:34] Speaker 00:
Thank you.

[00:24:39] Speaker 02:
We'll restore two minutes of rebuttal if you need it.

[00:24:43] Speaker 03:
Thank you, Your Honor.

[00:24:45] Speaker 03:
It's still hard for me to understand how an answer to a question can be deemed untrustworthy if the person who did the listening admitted that that was not the question she asked.

[00:25:02] Speaker 03:
In order for the board to have decided

[00:25:09] Speaker 03:
that Petitioner destroyed attachment three.

[00:25:11] Speaker 03:
In his statement, Ladd, Simmons' supervisor, refers to one document that he and Simmons took to Kapuscinski to sign after Petitioner destroyed it.

[00:25:30] Speaker 03:
That document was attachment one.

[00:25:34] Speaker 03:
Simmons is talking about attachment three.

[00:25:36] Speaker 03:
She says that she and Ladd took attachment three to Kabuzinski to sign after Petitioner destroyed it, which the judge and the board accept.

[00:25:47] Speaker 03:
The agency admitted in admission number 51 at page 102 of the appendix that the document that Simmons says Ladd and her and she took to Kabuzinski was not attachment three.

[00:26:07] Speaker 03:
That's an agency admission.

[00:26:09] Speaker 03:
There was no evidence in the record whatsoever aside from Simmons' statement that petitioner destroyed any unsigned document, particularly attachment three.

[00:26:21] Speaker 03:
And I agree with the agency.

[00:26:23] Speaker 03:
If, in fact, we toss out element one, there's nothing left of this case.

[00:26:30] Speaker 03:
Because her testimony at the hearing

[00:26:36] Speaker 03:
was forthright.

[00:26:38] Speaker 03:
In answer to your question, Judge Cunningham, the board cited a page of testimony in which Petitioner was evasive.

[00:26:50] Speaker 03:
That page of testimony is appendix page 139.

[00:26:53] Speaker 03:
I indicate this in my brief.

[00:26:57] Speaker 03:
Page 139 has no evidence whatsoever that Petitioner is evasive.

[00:27:03] Speaker 03:
She's asked a question, and she answers it.

[00:27:05] Speaker 01:
Can I just ask you one last question, because I know we're over time?

[00:27:08] Speaker 01:
Did Ms.

[00:27:09] Speaker 01:
Agarwal amend her meeting with Gerland to destroying attachment one?

[00:27:14] Speaker 03:
She was not asked about it.

[00:27:16] Speaker 03:
Well, during her meeting with Gerland, Gerland never referenced attachment one or attachment three, because those were not in the record at that time.

[00:27:29] Speaker 03:
She asked whether she had ever destroyed a document she refused to sign, and petitioner volunteered.

[00:27:35] Speaker 03:
that she destroyed a document that she had signed.

[00:27:38] Speaker 03:
And Garland said, I'm not talking about a document that you signed.

[00:27:42] Speaker 03:
I'm talking about a document you refused to sign.

[00:27:45] Speaker 03:
We learned later when the proposal was issued that Attachment 1 and Attachment 3 were at issue.

[00:27:53] Speaker 03:
And Petitioner at that point said, I destroyed Attachment 1.

[00:28:00] Speaker 03:
The agency still argues that, well, she didn't refer to attachment three in her reply.

[00:28:05] Speaker 03:
She's not required to.

[00:28:08] Speaker 03:
The board has been clear that it's the agency's burden of proof.

[00:28:13] Speaker 03:
And she is not obligated to tell.

[00:28:16] Speaker 03:
She could have no reply.

[00:28:18] Speaker 03:
And that would not be held against her.

[00:28:22] Speaker 03:
Thank you.

[00:28:22] Speaker 03:
We thank both sides.

[00:28:23] Speaker 03:
The case is submitted.