[00:00:00] Speaker 01:
Our next case for argument is 23-1814, Slayton v. Department of Agriculture.

[00:00:06] Speaker 01:
Council, please proceed.

[00:00:08] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:00:10] Speaker 01:
Mr. Slayton does not here dispute the charge of conduct unbecoming, so the only two issues before this Court are whether substantial evidence supports the Board's nexus finding and whether the penalty of removal was within the bounds of reasonableness.

[00:00:24] Speaker 01:
So starting with the Nexus finding, this is an off-duty misconduct case.

[00:00:30] Speaker 01:
This court in Brown held that the standard there is whether the conduct was inconsistent with the agency's mission or undermines the confidence in the employee.

[00:00:39] Speaker 01:
The board here took a Kruger board case standard, which fits with the Brown standard, and looked at whether the conduct adversely affected his job, his co-worker's jobs, or the agency's trust and confidence in him.

[00:00:54] Speaker 00:
Can I ask a question?

[00:00:56] Speaker 00:
Assume for just purposes of my question that Mr. Stewart's testimony and Ms.

[00:01:04] Speaker 00:
T's testimony was found to not be credible.

[00:01:09] Speaker 00:
What evidence supports the finding of Nexus?

[00:01:14] Speaker 01:
Mr. Stewart's testimony itself was that he lost confidence in Mr. Slaton's ability to do his job.

[00:01:25] Speaker 01:
Assuming we don't believe that that was the case, then the board still could have looked at the evidence itself to determine whether the agency's actions showed a loss of confidence in Mr. Slaton, which the agency did.

[00:01:43] Speaker 01:
immediately put him on administrative leave.

[00:01:46] Speaker 01:
They told him to stay away from Miss T or anywhere she might be.

[00:01:52] Speaker 01:
And then when the administrative leave was up, the agency moved him to a location 15 miles away where he was no longer doing remote field work and he was seated next to a supervisor who watched him at all times.

[00:02:07] Speaker 01:
So even if we don't directly believe Mr. Stewart's testimony,

[00:02:12] Speaker 01:
The fact that the agency decided to immediately put him on leave and then move him suggests a loss of confidence in his ability to stay in his current job.

[00:02:23] Speaker 00:
All right.

[00:02:23] Speaker 00:
And is all of that evidence in the record?

[00:02:26] Speaker 01:
Yes.

[00:02:30] Speaker 01:
But the administrative judge did for the most part believe both Ms.

[00:02:37] Speaker 01:
T and Mr. Stewart, other than Mr. Stewart's testimony specifically about his loss of confidence in putting Mr. Slayton in a remote setting.

[00:02:48] Speaker 01:
That was the only thing that the administrative judge questioned in terms of Mr. Stewart's testimony.

[00:02:54] Speaker 01:
And again, that was not necessarily

[00:03:00] Speaker 01:
credibility.

[00:03:01] Speaker 01:
It was definitely not a demeanor-based credibility.

[00:03:04] Speaker 01:
It was based on the fact that he remained with the agency after the incident.

[00:03:08] Speaker 01:
But again, they did put him on administrative leave.

[00:03:12] Speaker 01:
They did move him to a different location where he was more closely supervised.

[00:03:16] Speaker 01:
So they lost trust in his ability to do the job that he was actually doing.

[00:03:22] Speaker 01:
While there were parts of Ms.

[00:03:24] Speaker 01:
T's testimony that the administrative judge did not credit, overall the administrative judge upheld the charge, meaning that there was preponderance of the evidence showing that he did engage in this conduct, that he knew it was unwelcome and that

[00:03:44] Speaker 01:
He proceeded regardless.

[00:03:45] Speaker 01:
She credited all those things.

[00:03:47] Speaker 01:
She also credited Ms.

[00:03:48] Speaker 01:
T's testimony about sort of the aftermath of the incident and how she felt, how it affected her ability to do her job, how she was on administrative leave as well, went back into the office for a day just to try to complete her work, but was very uncomfortable when she came across Mr. Slayton.

[00:04:11] Speaker 01:
So all of that supports the nexus finding that the board made.

[00:04:21] Speaker 01:
In terms of the penalty, it was within the bounds of reasonableness.

[00:04:25] Speaker 01:
One of the main Douglas factor here is the nature and seriousness of the offense.

[00:04:31] Speaker 01:
It was a serious unwelcome sexual misconduct offense that affected the agency.

[00:04:41] Speaker 01:
affected the two workers, Mr. Slayton and Ms.

[00:04:44] Speaker 01:
Teague.

[00:04:48] Speaker 01:
Unless the court has any further questions.

[00:04:50] Speaker 01:
Okay.

[00:04:51] Speaker 01:
Thank you, counsel.

[00:04:52] Speaker 01:
This case is taken under submission.