[00:00:00] Speaker 00:
We have three argued cases this morning.

[00:00:02] Speaker 00:
The first is 22, 1808 Santos versus NASA, Mr. Bonk.

[00:00:23] Speaker 00:
Go ahead.

[00:00:24] Speaker 02:
May please the court Christopher long for petitioner Fernando Santos This court has previously remained in this case with instructions for corrected she had analysis to the board of the administrative judge has again aired in failing to correctly apply the she and factors to mr. Santos's prima facie usera claims particularly where substantial evidence does not

[00:00:45] Speaker 02:
support the judge's findings on Sheehan Factors 2 and 3 in particular.

[00:00:50] Speaker 02:
And additionally, the administrative judge erred as a matter of the law in applying the wrong legal standard to the agency's burden under USERA.

[00:00:59] Speaker 02:
I turn first to Sheehan Factor 2 to note some of the omissions from the judge's decision on pertinent testimony and evidence on the inconsistencies between the agency's actions and the reasons stated.

[00:01:11] Speaker 02:
In the lead-up to the performance improvement plan in February 2018, there was a letter of instruction issued that cited unreliable reporting.

[00:01:20] Speaker 03:
Did you specifically raise arguments to us regarding inconsistency or did you potentially forfeit those arguments?

[00:01:26] Speaker 02:
I believe those are raised pretty explicitly and I think that was a large portion of petitioners' reply brief because that was a concern raised by a defendant.

[00:01:34] Speaker 02:
responded in that matter where we raised at length the issues with the judges analysis within factors two and three throughout petitioners initial brief

[00:01:53] Speaker 02:
In our I think we reference the ranges of those discussions in factors to in the petition in the reply brief we note petitioners brief at 36 through 38 addressing the

[00:02:08] Speaker 02:
Letter of instruction in February 28 one that I was just referencing in my argument There's a discussion on the judge's failure to address a Letter of reprimand petitioners brief at 38 there's also discussions on the administrative judges failure to conduct a proper Sheehan analysis on the decision to place mr. Santos at a pet Peruvian federal service at petitioners brief 39 through 42

[00:02:37] Speaker 00:
So an administrative judge doesn't have to mention each piece of evidence and analyze it, correct?

[00:02:46] Speaker 00:
Certainly true.

[00:02:47] Speaker 00:
So what's the legal error?

[00:02:50] Speaker 02:
So a couple, I think, answers to that.

[00:02:54] Speaker 02:
As far as the legal error goes, I think we would agree or concede to respond that the assessment here is not necessarily one of legal error for that issue within the prima facie USERA analysis, but rather whether the administrative judge's findings on those are supported by substantial evidence.

[00:03:08] Speaker 02:
But even within that context, I agree.

[00:03:10] Speaker 02:
Typically, the administrative judge doesn't need to assess every little bit.

[00:03:13] Speaker 02:
However, this court, in looking at similar USERA claims, like in the McMillan decision back in 2016,

[00:03:25] Speaker 02:
This is not an issue where we're asking the court to go and re-evaluate or re-weigh the evidence.

[00:03:31] Speaker 02:
Rather, it is an issue where there is pertinent, contradictory, or contrary evidence within the case record that is very much omitted, very much outside of the realm of consideration in the administrative judge's decision.

[00:03:43] Speaker 02:
And that's where we turn to the issue, or we think we get into the issue of, does substantial evidence support this?

[00:03:49] Speaker 04:
And if the evidence is contradictory and the administrative law judge found

[00:03:54] Speaker 04:
the contradictory evidence in favor of the appellee, more credible or more corroborated, then you just disagree.

[00:04:05] Speaker 02:
I would agree with you, Judge, if the administrative judge had addressed any of the contradictory evidence.

[00:04:10] Speaker 02:
But it is omitted.

[00:04:10] Speaker 02:
It is excluded.

[00:04:11] Speaker 04:
It is carved out from the... So how do you know she didn't consider it?

[00:04:14] Speaker 04:
I mean, just because she didn't articulate it all.

[00:04:17] Speaker 04:
I mean, the decision's like 10 pages long of fact findings

[00:04:21] Speaker 04:
that she found supported her ultimate decision that your client didn't meet his burden of proof.

[00:04:27] Speaker 02:
A great deal of factual determinations, absolutely correct, Your Honor.

[00:04:29] Speaker 02:
But again, none of the determinations there address.

[00:04:33] Speaker 02:
There's no weighing of evidence where, you know, there is contrary testimony, there's contrary fact here.

[00:04:37] Speaker 02:
And within our briefings, we point out a variety of instances throughout the record evidence.

[00:04:44] Speaker 02:
that directly contradict the judge's assessment there and that's particularly important for the Sheehan assessment here because again what we're looking at for Mr. Santos' prima facie burden here is not to demonstrate concretely at the end of the day for the prima facie case at least

[00:04:59] Speaker 02:
that his military service was the only reason for the action.

[00:05:04] Speaker 02:
Rather, what we're demonstrating here with the supreme fashion burden is simply that his military service was one factor potentially of many of why the agency took the actions that it did against him.

[00:05:16] Speaker 02:
And so, you know, particularly with respect

[00:05:20] Speaker 02:
For example, the letter of instruction that I was mentioning previously that calls out Mr. Santos for unreliable reporting tardiness, the administrative judge's determination is contradicted by the record evidence.

[00:05:32] Speaker 02:
The judge stated that Mr. Santos did not dispute that he often arrived late, explaining that was because of medical issues, except that Mr. Santos' testimony in the record did not

[00:05:43] Speaker 02:
reflect what the judge's summation of his destiny was.

[00:05:46] Speaker 02:
Rather, he testified to his flexible work schedule that for the previous, I think it was about 18 years at NASA, he had a flexible schedule.

[00:05:53] Speaker 02:
He could not be late.

[00:05:54] Speaker 02:
He did not have a set report date.

[00:05:55] Speaker 03:
But my understanding was that at one point there was a flexible schedule, but then there was a set schedule put in place, right?

[00:06:02] Speaker 02:
At early 2018, around the time of this letter of instruction, that's correct, Your Honor, I believe, it started in January 2018, resumed or continued through February 2018.

[00:06:11] Speaker 02:
where there was this arbitrary placement on this set schedule.

[00:06:15] Speaker 02:
And again, it was not until Mr. Santos' repeated use of military leave that this alteration was put in place.

[00:06:23] Speaker 02:
Similarly, there's a May 2018 reprimand that claims on the reprimand itself a repeated failure for Mr. Santos to timely complete mandatory training.

[00:06:31] Speaker 02:
And according to the administrative judge, the reprimand was because Mr. Santos failed to take the trainings timely,

[00:06:35] Speaker 02:
except that the reprimand itself doesn't offer a single example of Mr. Santos actually missing a training deadline.

[00:06:41] Speaker 02:
And the judge's own cited example is of a Saturn training.

[00:06:45] Speaker 02:
It's one that Mr. Santos did complete by the deadline.

[00:06:47] Speaker 02:
So again, we have these instances, very clear-cut instances within the case record contradicting the judge's findings on these issues and showing that there are indeed very clear-cut inconsistencies that are simply not acknowledged, not addressed in the decision.

[00:06:58] Speaker 02:
The placement of the PIP is a very significant one that happened in May 2018 What would you say is your best evidence of expressed hostility in the record?

[00:07:08] Speaker 02:
I appreciate that question, Judge.

[00:07:09] Speaker 02:
So in the hostility, there's actually quite a bit of hearing testimony going back to in part the first hearing, because of course there are two hearings in this matter, there's audio testimony on the first one.

[00:07:22] Speaker 02:
So in the first hearing, Mr. Haddock, who is one of the individuals who coordinated with his palace on placing Mr. Santos on the PIP and coordinating the proposed removal,

[00:07:32] Speaker 02:
testified a pretty clear cut to his own problems with Mr. Santos' military leave.

[00:07:37] Speaker 02:
He repeatedly complained at hearing about what he called, quote, the unfortunate timing of Mr. Santos' leave.

[00:07:44] Speaker 02:
And Mr. Haddock even alleged at hearing that Mr. Santos fabricated his need for military leave to try and escape work.

[00:07:51] Speaker 02:
The quote here is, Mr. Santos did communicate to me

[00:07:54] Speaker 02:
when he would be going on leave.

[00:07:55] Speaker 02:
In several instances, this occurred at times when there were significant assignments that were due, including briefings to the chief engineer.

[00:08:00] Speaker 02:
So it's just conjecture in my part whether this is mere coincidence or something more than that.

[00:08:03] Speaker 02:
But because of the number of times this occurred, it did bear question in my mind as to what it was going to take to get Mr. Santos to run an assignment through completion.

[00:08:11] Speaker 02:
And so Mr. Haddock is specifically stating here, specifically expressing his frustrations with Mr. Santos' leave and even alleging... To some extent, Haddock is saying

[00:08:22] Speaker 00:
Santos didn't accommodate his leave by completing his work as he should have before he went on leave and picking up the ball when he got back.

[00:08:34] Speaker 00:
There's nothing wrong with criticizing somebody for doing that, right?

[00:08:39] Speaker 02:
So it's an important distinction, I think, in the context of you, Sarah Kling, where... Well, not answer my question.

[00:08:44] Speaker 02:
So I think it is a distinction.

[00:08:46] Speaker 02:
I agree.

[00:08:46] Speaker 02:
Absolutely, Judge.

[00:08:47] Speaker 02:
There is a distinction there.

[00:08:48] Speaker 02:
And I think there can be legitimate criticisms there.

[00:08:51] Speaker 02:
But I think there's a distinction to draw for you, Sarah, claim on that.

[00:08:55] Speaker 02:
And I think this court addressed that to some extent in some of the

[00:09:00] Speaker 02:
Erickson determination in 2016, where there can be some reasons for taking action against an individual, but again, where it is a motivating factor, where the military service is one of the motivating factors, that's where it becomes impermissible.

[00:09:18] Speaker 00:
criticizing somebody for not accommodating his military leave by finishing his work before he goes on leave and not picking up the ball when he gets back is not hostility toward military status.

[00:09:32] Speaker 02:
Sir, I believe I'm agreeing with you, Judge, where there can be legitimate criticisms with that.

[00:09:37] Speaker 00:
Okay, so to some extent Santos goes beyond that and is frustrated by the taking of the leave itself, right?

[00:09:47] Speaker 00:
Correct.

[00:09:47] Speaker 00:
But is there any suggestion that Santos in some way was retaliated against by Haddock because of this?

[00:09:58] Speaker 00:
Haddock wasn't his supervisor, right?

[00:10:00] Speaker 02:
Correct.

[00:10:00] Speaker 02:
Mr. Haddock was not a supervisor.

[00:10:01] Speaker 02:
He was an individual he worked with closely.

[00:10:03] Speaker 02:
And so Mr. Haddock's feedback on Mr. Santos was relied upon in taking the actions against him.

[00:10:08] Speaker 02:
So as far as a separate retaliation claim, that's not what we're raising here today.

[00:10:12] Speaker 02:
Rather, it's the criticism, the hostility, Mr. Haddock's concerns with Mr. Santos's military leave being utilized, playing a part within this broader she-hand assessment on was his military leave a motivating factor, one motivating factor in the actions taken against Mr. Santos.

[00:10:29] Speaker 00:
And Mr. Haddock testified not just... So Vales, who was his supervisor, didn't express any hostility toward him because of his military leave, right?

[00:10:38] Speaker 02:
Incorrect, Judge.

[00:10:39] Speaker 02:
And that's another point here.

[00:10:40] Speaker 00:
Where did she do... Where's the testimony that she did that?

[00:10:43] Speaker 02:
And so actually, Mr. Haddock specifically testified to that as well.

[00:10:46] Speaker 02:
He spoke to his conversations as correspondents with Ms.

[00:10:48] Speaker 02:
Ballas on Mr. Santos' military leave, and Mr. Haddock testified

[00:10:52] Speaker 00:
Well, either Bales herself or Santos describing conversation with Bales.

[00:11:02] Speaker 00:
Where is there evidence that Bales expressed hostility toward him because of his military leave?

[00:11:08] Speaker 02:
So as far as Mr. Santos' testimony, there's testimony in the record on Mr. Santos articulating his meetings with Ms.

[00:11:15] Speaker 02:
Bowles following his, I think, immediately preceding some military leave where she was less than enthused.

[00:11:23] Speaker 02:
I believe Mr. Santos referred to it as a pregnant pause when he raised that he would be going out on leave imminently.

[00:11:29] Speaker 02:
But Mr. Haddock actually testified to his conversations with Ms.

[00:11:31] Speaker 02:
Bowles about concerns about Mr. Santos' military leave.

[00:11:35] Speaker 00:
Uh, and, and he's... Concerns that Bales expressed?

[00:11:38] Speaker 02:
Correct.

[00:11:39] Speaker 02:
And, and Mr. Haddock stated that Ms.

[00:11:41] Speaker 02:
Bales had questions on, quote, questions on the frequency of the military leave.

[00:11:45] Speaker 02:
Uh, and when he was asked whether Ms.

[00:11:46] Speaker 02:
Bales was concerned that Mr. Santos was taking more military leave than he could, could officially take, Mr. Haddock confirmed yes, uh, at testimony.

[00:11:53] Speaker 00:
So he... Okay, but that's not...

[00:11:56] Speaker 00:
That's not expressing frustration with taking legitimate military leave.

[00:12:00] Speaker 00:
It's just questioning whether the leave was legitimate.

[00:12:06] Speaker 00:
So questioning whether the leave is legitimate doesn't express hostility toward the military leave, does it?

[00:12:14] Speaker 02:
I see what you're saying there, Judge.

[00:12:15] Speaker 02:
But I think we do have clear-cut testimony from Mr. Hanek on that, on clear hostility towards repeatedly throughout the hearing

[00:12:24] Speaker 00:
OK, but I'm asking about Bales.

[00:12:26] Speaker 00:
I didn't see anything where Bales said that she was hostile to him or upset with him for taking military leave.

[00:12:35] Speaker 02:
Correct and judge and is there an instance where miss Bales quit out and said very straight-up, you know, I am hostile towards your military leave No, there's this not in the record and and that's I think it is an important consideration though within a sheehan assessment I think that's one of the reasons why the sheehan analysis is that it is as it is because it's very infrequent that we're gonna have a situation where An employer is gonna they're gonna come out and say something like that clear cut say I'm hostile to your military leave I'm going to take action against you before the military leave.

[00:13:00] Speaker 00:
I think you've got plenty of cases where people have been recorded as saying hostile things

[00:13:05] Speaker 02:
Certainly, but the Shihan assessment takes into that consideration that all too often what employees are focused on or left with, and I seem that I have exceeded my main argument time there.

[00:13:18] Speaker 00:
Go ahead, finish.

[00:13:19] Speaker 02:
Certainly.

[00:13:21] Speaker 02:
All too often, what the focus of the Xi'an assessment is, is looking at this totality of circumstances, looking at the evidence as a whole, not necessarily in reliance on particular direct evidence of hostility in order to support this pre-infection case.

[00:13:37] Speaker 02:
And our position is that the totality of the record evidence, as ignored by the judge, is indicative of these additional factors in Mr. Santos's favor, such that... In your conclusion, it was ignored because it's not enumerated in her order?

[00:13:51] Speaker 04:
As opposed to her having written what she found persuasive corroborated incredible in part.

[00:13:58] Speaker 00:
Yes judge Okay, we'll give you two minutes for Mr.. Kikora am I pronouncing that correctly?

[00:14:14] Speaker 00:
Yes

[00:14:25] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:14:28] Speaker 01:
Mr. Santos' argument challenging the Board's USERA finding amounts to nothing more than disagreement with the Board's weighing of the evidence and credibility determinations.

[00:14:38] Speaker 01:
As we discussed in our brief,

[00:14:40] Speaker 01:
The board analyzed the relevant evidence in detail and provided its determinations as to the credibility of the witnesses and the relative weight of evidence.

[00:14:50] Speaker 01:
While Mr. Santos may disagree with the board's findings on these points, his disagreement cannot serve as a basis to disturb the board's decision.

[00:14:59] Speaker 00:
What Santos is saying is there was relevant evidence about

[00:15:04] Speaker 00:
hostility expressed by Hattick, which wasn't analyzed by the administrative judge.

[00:15:12] Speaker 00:
And so what's the answer to that?

[00:15:14] Speaker 01:
Well, I think the court made some of those points earlier.

[00:15:18] Speaker 01:
First of all, the board did discuss Mr. Hattick's testimony, and Mr. Hattick was also not Mr. Santos' supervisor, but I think beyond that,

[00:15:30] Speaker 01:
Any of the comments that Mr. Haddock may have made in his testimony regarding frustration or something like that were not expressing hostility to Mr. Santos' military leave.

[00:15:46] Speaker 01:
Mr. Haddock was the individual who was covering for Mr. Santos while he was on leave.

[00:15:53] Speaker 01:
So some of his statements about, you know,

[00:15:57] Speaker 01:
work not being completed before he left or failing to pick it up when he came back is referring to his issues with having to cover for him and the work that was done while Mr. Santos was in the office and I think that's really the key point here is what the board found after going through all of the evidence and testimony and you know documentary evidence is that

[00:16:25] Speaker 01:
The agency's issue with Mr. Santos didn't have anything to do with his military leave.

[00:16:32] Speaker 01:
It had to do with his performance when he was in the office.

[00:16:35] Speaker 01:
And that's what the board ultimately found.

[00:16:40] Speaker 00:
Where is that finding?

[00:16:43] Speaker 01:
Well, essentially what I'm saying, Your Honor, is that the board agreed with

[00:16:51] Speaker 01:
the agency's determination, or the board sustained the agency's determination as to Mr. Santos' performance.

[00:17:00] Speaker 01:
And all of those performance findings had to do with the quality of his work while he was in the office.

[00:17:06] Speaker 00:
So there's no such specific finding.

[00:17:09] Speaker 00:
What does the AJ say about the Haddock testimony?

[00:17:11] Speaker 00:
Where is that?

[00:17:13] Speaker 01:
Bear with me for a moment.

[00:17:24] Speaker 01:
Well, as the court noted earlier, in the record from pages 41 to 60, there's an extensive recitation of the chronological evidence during this time period.

[00:17:42] Speaker 01:
So I'm looking at the board discusses Mr. Haddock's testimony extensively from pages in the appendix 43

[00:17:51] Speaker 01:
through 44, 45, 46, where it's noting these meetings and discussing Mr. Haddock's testimony on those points.

[00:18:04] Speaker 00:
But more specifically, where does the AJ specifically address Haddock's testimony about his frustrations?

[00:18:19] Speaker 00:
If anywhere.

[00:18:26] Speaker 01:
I don't believe it specifically speaks to page 66.

[00:18:35] Speaker 01:
This is now into the section of the opinion discussing the Xi'an factors, where it's discussing Haddock's testimony and the concerns that Mr. Haddock and Ms.

[00:18:54] Speaker 01:
Fanari

[00:18:55] Speaker 01:
another employee at NASA had with Mr. Santos' work product.

[00:19:01] Speaker 00:
Okay, but that's different.

[00:19:06] Speaker 00:
I'm talking about his testimony that he was frustrated about the amount of lead

[00:19:11] Speaker 00:
that Santos took.

[00:19:14] Speaker 00:
There's no mention of that, right, in the AJ's decision, which I think is their argument that he should have addressed that.

[00:19:20] Speaker 01:
Well, lower down on that same page, the AJ discusses Mr. Santos' testimony on that point where he says, he's quoting now deep in his bones that Ms.

[00:19:33] Speaker 01:
Bales was irritated with his use of leave and his performance

[00:19:38] Speaker 01:
which was acceptable as an excuse to remove him.

[00:19:41] Speaker 01:
So it's discussing this idea that these employees were frustrated or irritated with the use of these.

[00:19:51] Speaker 00:
But Hattick's frustration, his own frustration is not described here, right?

[00:19:59] Speaker 01:
Not specifically, no, Your Honor.

[00:20:01] Speaker 00:
I mean, I think that's their argument, is that it should have been discussed specifically.

[00:20:05] Speaker 00:
What's the answer to that?

[00:20:07] Speaker 01:
Well, as the court noted earlier, there's the case law which states that the board does not need to address every single piece of evidence in order to justify its decision.

[00:20:19] Speaker 01:
And again, there's an extensive discussion here in the first 20 pages of the opinion outlining all of the

[00:20:31] Speaker 01:
evidence that the board took into account throughout this entire period both from the documentary evidence as well as testimony.

[00:20:39] Speaker 03:
How does Mr. Haddock's frustration play in given the fact that he is not the ultimate decision-maker?

[00:20:46] Speaker 03:
Does that affect any of your arguments?

[00:20:49] Speaker 01:
Well, yes, I think that's a key point, Your Honor, which is that he's not the decision-maker.

[00:20:54] Speaker 01:
He's another employee within NASA and

[00:21:00] Speaker 01:
You know, whether he had frustrations or not, the fact remains that Mr. Santos' supervisor never denied any of his military leave.

[00:21:08] Speaker 01:
And Mr. Santos himself testified that Ms.

[00:21:13] Speaker 01:
Bales never pushed back on his requests for military leave.

[00:21:19] Speaker 00:
Well, Hattick's not just a co-worker.

[00:21:21] Speaker 00:
I mean, he also had some input in the evaluation of Santos' work, right?

[00:21:29] Speaker 01:
I believe he had a role in sort of reviewing the work product and submitting those comments to Ms.

[00:21:37] Speaker 01:
Bales, but he was not the ultimate decision maker.

[00:21:42] Speaker 00:
So only hostility by the ultimate decision maker is relevant?

[00:21:47] Speaker 01:
I wouldn't go that far, Your Honor, but what I would say is that the board here found that there was not hostility towards Mr. Santos.

[00:21:59] Speaker 00:
by Bales, right?

[00:22:06] Speaker 01:
Well, I think the board's decision focuses on Ms.

[00:22:13] Speaker 01:
Bales as a particularly relevant witness as his supervisor, but the standard in what the board says refers to the employer generally.

[00:22:23] Speaker 01:
So we're talking about the agency.

[00:22:25] Speaker 01:
So yes, Ms.

[00:22:26] Speaker 01:
Bales is represented.

[00:22:27] Speaker 00:
Is there a general finding that the employer did not express hostility?

[00:22:32] Speaker 01:
Yes, in that same section we were just referring to at pages 66 through 68.

[00:22:39] Speaker 00:
Tell me specifically where that finding appears.

[00:22:44] Speaker 01:
What the board found was that

[00:22:50] Speaker 01:
Mr. Santos had not carried his burden by a preponderance of the evidence of showing that the agency expressed hostility towards his military leave.

[00:22:59] Speaker 00:
Where is that?

[00:23:00] Speaker 01:
That is on page 66 where the board opens up and says that the third factor, which is this hostility factor, weighs in the agency's favor.

[00:23:13] Speaker 00:
Where's the material you're requiring?

[00:23:15] Speaker 01:
I'm sorry.

[00:23:17] Speaker 00:
I couldn't hear you.

[00:23:18] Speaker 00:
66.

[00:23:18] Speaker 00:
Where's the material you're quoting on 66?

[00:23:21] Speaker 01:
The second full paragraph on 66, the third factor, and employers expressed hostility towards members protected by the statute together with knowledge of the employee's military activity also weighs in the agency's favor.

[00:23:43] Speaker 01:
OK.

[00:23:45] Speaker 01:
And that brings me to another relevant point here, which is that Mr. Santos has raised an argument before this court that the board applied an improper standard of review.

[00:24:01] Speaker 01:
That's not correct.

[00:24:02] Speaker 01:
There were two portions to the board's decision.

[00:24:05] Speaker 01:
The first part had to do with the review that was ordered by this court in the previous remand opinion of

[00:24:13] Speaker 01:
Having the board review whether or not the agency had established that Mr. Santos' performance prior to his placement on the PIP, the Performance Improvement Plan, was supported by substantial evidence.

[00:24:27] Speaker 01:
That was the standard of review that this court directed in its previous decision.

[00:24:33] Speaker 01:
So that's what the board analyzed for that portion of its opinion.

[00:24:36] Speaker 04:
And they found that it was supported that his performance was not acceptable.

[00:24:41] Speaker 04:
And that's not being appealed.

[00:24:43] Speaker 01:
That's correct, Your Honor.

[00:24:45] Speaker 01:
With regard to the second question, the USERRA issue, again, the USERRA statute creates a burden shifting mechanism.

[00:24:54] Speaker 01:
The burden is initially on the appellant to show by a preponderance of the evidence that he's met his prima facie case.

[00:25:03] Speaker 01:
Here, the board found that Mr. Santos had not done so.

[00:25:08] Speaker 01:
So the burden never shifted to the agency.

[00:25:10] Speaker 01:
There was never any reason for the board to look at the agency's justifications under a preponderance of the evidence because it found that Mr. Santos had not initially carried his burden.

[00:25:22] Speaker 01:
So again, the board applied the proper standard of review to both pieces of its decision.

[00:25:38] Speaker 00:
Anything more?

[00:25:39] Speaker 01:
Nothing further, Your Honor.

[00:25:41] Speaker 00:
Okay.

[00:25:42] Speaker 00:
Thank you.

[00:25:43] Speaker 00:
Thank you, Mr. Baulk.

[00:25:44] Speaker 00:
You have two minutes.

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

[00:26:03] Speaker 00:
Two minutes.

[00:26:08] Speaker 02:
May please the court.

[00:26:09] Speaker 02:
So to address some points my colleague raised there, you know, Mr. Haddock was not the ultimate decision maker.

[00:26:16] Speaker 02:
But, however, his role is significant.

[00:26:17] Speaker 02:
He did help kick off the PIP.

[00:26:18] Speaker 02:
Ms.

[00:26:19] Speaker 02:
Ballas relied upon him.

[00:26:20] Speaker 02:
And as I believe is noted in the briefings, I believe at page 29, petitioner notes the significance of his comments within the PIP.

[00:26:33] Speaker 04:
There's case law and the individual influencing this action may still be considered a... If his comments went to the determination that the PIP was appropriate and the PIP was found to be appropriate because his performance was not up to par, you're not appealing that.

[00:26:54] Speaker 04:
Then doesn't that color a little bit your comments that he's frustrated because of military leave as opposed to just performance problems.

[00:27:03] Speaker 02:
I disagree.

[00:27:04] Speaker 02:
I don't think that's the case judge.

[00:27:05] Speaker 02:
And I think it's an important distinction to make here because the PIP placement issue I think that you're referring to is an assessment by the judge on a whole separate

[00:27:12] Speaker 02:
The Title V, Chapter 43 performance action, substantial evidence, very deferential.

[00:27:18] Speaker 02:
In fact, the judge noted in the first decision how deferential it is in the context of, we're talking about a rocket scientist performance.

[00:27:26] Speaker 02:
A wholly different burden of proof on the agency for the USERA claims, preponderant evidence to demonstrate that they would have taken that action anyway.

[00:27:32] Speaker 04:
And so I think it is... Right, but your evidence that you suggested to us was that Haddock, as somebody who was working with or in place of Mr. Santos,

[00:27:42] Speaker 04:
was frustrated and expressed frustration because it was related to leave.

[00:27:47] Speaker 04:
And yet there's also evidence in the record here that your client's best comment was he just felt in his bones.

[00:27:56] Speaker 04:
People were irritated that he was taking so much leave.

[00:28:00] Speaker 04:
And yet his direct supervisor was never pushed back, tried to get him telework opportunities while he was on leave, if that was doable.

[00:28:09] Speaker 04:
So anyway, people expressing frustration because the job's not getting done doesn't necessarily equate to because he's on military service, but rather his performance when he's there.

[00:28:21] Speaker 02:
I see what time has ended if I answer the question.

[00:28:25] Speaker 02:
So I think it raises an excellent point there, Judge, where the framework here that we're looking at

[00:28:32] Speaker 02:
is not just the expressed hostility, the statements of hostility.

[00:28:36] Speaker 02:
There's a larger tapestry of hostility within the evidence here that we've addressed.

[00:28:42] Speaker 02:
In part, the actions taken against Mr. Santos, there's constant comments intermixed with his military leave on lack of engagement.

[00:28:53] Speaker 02:
And that lack of engagement comment continuing throughout his military service with this particular group.

[00:29:02] Speaker 02:
It's similar to the terminology of this court noted in McMillan where the agency was offering after-the-fact justifications for a failure to engage.

[00:29:09] Speaker 02:
It's these buzzwords that are indicative of hostility towards the leave that are not just limited to specific direct statements by management.

[00:29:20] Speaker 00:
Okay, all right.

[00:29:21] Speaker 00:
Thank you.

[00:29:22] Speaker 00:
Thank you both, counsel.

[00:29:23] Speaker 00:
The case is submitted.