[00:00:00] Speaker 03: Our next case this morning is number 23-2339, Stevenson versus Commerce. [00:00:09] Speaker 03: Yes, Ms. [00:00:09] Speaker 03: Lewis. [00:00:11] Speaker 01: May it please the court, Deonria Lewis on behalf of the appellant, Anastasia Stevenson. [00:00:16] Speaker 01: In this case, the Merit System Protection Board, rendered by Judge Sherry Zamora, which affirmed the agency-imposed penalty of Ms. [00:00:24] Speaker 01: Stevenson's removal from federal service, should be set aside and reversed pursuant to 5 U.S.C. [00:00:30] Speaker 01: 7703 subsection C, because one, it was not supported by substantial evidence, and two, the findings in the board's decision demonstrated an abuse of discretion. [00:00:41] Speaker 01: Furthermore, the agency did not prove its case in whole or in part by a preponderance of the evidence. [00:00:49] Speaker 01: The penalty of Ms. [00:00:49] Speaker 01: Stevenson's removal was not reasonable under the circumstances, nor did it promote the efficiency of service. [00:00:56] Speaker 02: I understand your substantial evidence argument. [00:01:00] Speaker 02: Why was there an abuse of discretion? [00:01:02] Speaker 01: Yes, absolutely, Your Honor. [00:01:04] Speaker 01: And so in relation to the abuse of discretion, we have a litany, quite frankly, of reasons that we believe the board abuses discretion. [00:01:14] Speaker 01: So first and foremost... What's the best one? [00:01:18] Speaker 01: The best argument in terms of why the board abuses discretion is because Judge Zamora imputed essentially liability on Ms. [00:01:26] Speaker 01: Stevenson, or a burden of proof, [00:01:28] Speaker 01: on Ms. [00:01:28] Speaker 01: Stevenson to indicate that basically the absence of a negative, that she did not do something. [00:01:35] Speaker 04: I'm not sure I agree that that's a fair characterization of how things went down here. [00:01:39] Speaker 04: We hear this all the time in our patent cases that they shifted, erroneously shifted the burden. [00:01:45] Speaker 04: But here, they clearly made a case. [00:01:47] Speaker 04: I mean, they didn't have cameras, so they didn't make 100% beyond a reasonable doubt case. [00:01:53] Speaker 04: But they came forward with evidence to then point out that your side didn't have any contrary evidence, which is, I think, what they were saying. [00:02:03] Speaker 04: what already inconsistent evidence is fair game. [00:02:08] Speaker 04: That's what an adjudicatory tribunal has to look at. [00:02:12] Speaker 04: So I don't see where the shifting of the burden thing gets you very far. [00:02:16] Speaker 01: Absolutely, Your Honor. [00:02:16] Speaker 01: And if I could elaborate on both of those questions in your response, Your Honor. [00:02:21] Speaker 01: So in this case, in addition to that argument, and while we understand Your Honor's point on that, outside of that, Ms. [00:02:27] Speaker 01: Stevenson also provided evidence of the fact in the record that Mr. Costillo's [00:02:33] Speaker 01: testimony was actually not consistent. [00:02:37] Speaker 01: And so there was also a further abuse of discretion by weighing, essentially, Mr. Costello's testimony... Was that consistent with what? [00:02:45] Speaker 01: The record, Your Honor. [00:02:46] Speaker 01: And so specifically... [00:02:48] Speaker 01: Your Honor, I'm going to, if I can, point to the record for further guidance. [00:02:53] Speaker 01: So specifically, if we look at Appendix 132, that was related to Costello's original statement. [00:03:02] Speaker 01: We, in our written reply, assert the fact that originally Mr. Costello's statement has changed. [00:03:09] Speaker 01: And this was something that did come out on the record. [00:03:13] Speaker 01: Your Honor, well, that's a part of the other issue here. [00:03:16] Speaker 01: where Stevenson was not actually given a copy of his original statement. [00:03:20] Speaker 01: And so there's a chain of custody issues here. [00:03:22] Speaker 03: You're saying that he contradicted himself. [00:03:24] Speaker 03: How did he contradict himself? [00:03:26] Speaker 01: Well, yes, Your Honor. [00:03:28] Speaker 01: I think what I'm saying is that there's a credibility issue, not necessarily that he contradicted himself. [00:03:32] Speaker 01: So related to what I'm pointing out in Appendix 172. [00:03:34] Speaker 03: What's the credibility issue? [00:03:36] Speaker 01: He changed his statement, Your Honor. [00:03:38] Speaker 01: And so initially, what he indicated was the basis for the proposed removal was a finding that there was agency official mail, including wage garnishment, including background investigations, so on and so forth. [00:03:54] Speaker 01: But the reality is, it wasn't until after Ms. [00:03:56] Speaker 01: Stephenson's written and or reply did they provide a supplemental declaration from Mr. Costello [00:04:03] Speaker 01: and Mr. and Ms. [00:04:05] Speaker 01: Lewis, no relation, that now he is saying that there was junk mail found in these shredder bins. [00:04:12] Speaker 01: And so we're saying that there's a credibility issue and that there was an abuse of discretion, because there is now new evidence that was not originally presented. [00:04:21] Speaker 01: But once Ms. [00:04:21] Speaker 01: Stevenson provided her version of the facts, because she's consistently been consistent about the facts. [00:04:26] Speaker 04: So the fact that there was junk mixed in, how does that go to the gravamen of the situation? [00:04:31] Speaker 04: And filing a reply. [00:04:32] Speaker 04: based on his supplemental information, based on her reply, is kind of standard practice. [00:04:37] Speaker 01: Thank you for that question, Your Honor. [00:04:39] Speaker 01: And so we believe that that is relevant, because Judge Zamora actually put a lot of weight to your question, Judge Goldberg, related to the fact that Ms. [00:04:48] Speaker 01: Stevenson, in fact, admitted to the fact that she discarded junk mail in one shred bin. [00:04:54] Speaker 01: And so Judge Zamora, in her position, in her findings, indicated that the fact that Ms. [00:04:59] Speaker 01: Stevenson did admit to providing [00:05:02] Speaker 01: or discarding junk mail in these advertisements in the shred bin, the fact that these advertisements and junk mail was also found, by the way, which was not said in the original statement from Mr. Costello, or evidence presented by Mr. Costello in the record when the original notice of proposed removal was offered, [00:05:21] Speaker 01: is now being used as a basis for Judge Zamora and the board to draw a correlation between Ms. [00:05:27] Speaker 01: Stevenson's access and opportunity to throw away mail, all this mail, all 594 pieces of mail that, one, there was no established chain of custody for, as we've argued not only in our original brief and our reply, but the fact that they just pulled out mail out of three shredder bins. [00:05:45] Speaker 01: No one can actually identify which mail came from which shredder bin. [00:05:50] Speaker 01: And so the fact that these printer sheets, which supposedly have these end marks or benchmarks for dates, allegedly, were also coupled with the junk mail that they are attributing to Ms. [00:06:01] Speaker 01: Stevenson admitting that she did throw away, somehow Judge Damar has taken this whole scenario to mean that Ms. [00:06:09] Speaker 01: Stevenson did, in fact, participate [00:06:12] Speaker 01: in the alleged conduct as charged, which was to throw away this mail. [00:06:17] Speaker 01: So your honor, Judge Goldberg, back to your original question of how, well, we believe that's also another example of the abuse of discretion that is relevant here, and it is identified here in the record. [00:06:27] Speaker 01: The fact that Mr. Costillo also changed his statement [00:06:31] Speaker 01: we believe is significant. [00:06:33] Speaker 01: And Judge Zamora did not really use that or look at that as a credibility issue. [00:06:39] Speaker 04: Did he say in his first statement there was nothing other than this objective to mail in the bins? [00:06:45] Speaker 01: So that's the issue, Your Honor. [00:06:47] Speaker 01: In his first statement, he did not say anything about junk mail. [00:06:51] Speaker 01: He changed it. [00:06:52] Speaker 04: Right. [00:06:53] Speaker 04: Well, he didn't change it if he didn't say anything about it. [00:06:56] Speaker 04: But he also didn't contradict himself if his first statement was [00:07:01] Speaker 04: not that was the only male there. [00:07:03] Speaker 04: There was no junk male. [00:07:05] Speaker 04: There would be a contradiction if that's what he said in the first statement. [00:07:08] Speaker 04: Is that what he said in the first statement? [00:07:09] Speaker 01: Your Honor, he didn't use the word only, but he did indicate in his first statement that this was the male that was found, and this was the male that was caught out of traffic. [00:07:17] Speaker 04: Well, because that's the male that established the basis for the violation. [00:07:21] Speaker 04: There was no need to talk about male that was not a basis for the violation here. [00:07:28] Speaker 04: So I guess I'm not seeing it as a contradiction. [00:07:31] Speaker 01: Absolutely, Your Honor. [00:07:32] Speaker 01: And we're not necessarily saying that it's a direct conflict as a contradiction, but we are saying that that should have weighed into Judge DeMore's analysis as it relates to Mr. Costello's credibility. [00:07:43] Speaker 01: as well as this whole chain of command and chain of custody issue related to one, how the mail was in fact pulled out of the shredder bins. [00:07:50] Speaker 01: I mean, there's also an inconsistency in the record where their agencies' own employees don't know if it was three shredder bins, one shredder bin. [00:07:58] Speaker 01: Ms. [00:07:58] Speaker 01: Stevenson has been consistent about the fact [00:08:00] Speaker 01: that she only used one shredder bin the entire time. [00:08:04] Speaker 01: Furthermore, in alignment with that same point, Judge Zamora did not consider the fact that there was access and opportunity for many other employees, including employee Joanne Fowler, who was previously, before Ms. [00:08:16] Speaker 01: Stevenson, was [00:08:18] Speaker 01: provided this task, actually participating in the sorting and distribution of mail. [00:08:25] Speaker 01: Yet, Ms. [00:08:26] Speaker 01: Fowler was not a part of that original limited inquiry. [00:08:30] Speaker 04: Two other names that came up in this case, something with a G in it. [00:08:33] Speaker 01: Ms. [00:08:34] Speaker 01: Jamila Gassy, yes. [00:08:35] Speaker 04: And one of them spent 15 minutes helping. [00:08:37] Speaker 04: Your client needed help. [00:08:38] Speaker 04: She asked for help, but she got some help. [00:08:40] Speaker 04: At least one of those people only helped her for 15 minutes. [00:08:45] Speaker 04: That was not contradicted, right? [00:08:47] Speaker 01: No, Your Honor, that was not contradicted. [00:08:49] Speaker 01: But also, as it relates to Ms. [00:08:50] Speaker 01: Gaston's testimony, she also indicated that she never saw Ms. [00:08:54] Speaker 01: Stevenson throw away any mail either. [00:08:57] Speaker 04: Well, she was there for 15 minutes of a process that took, how much, a couple days? [00:09:01] Speaker 01: A few days over the course of about three weeks or so. [00:09:04] Speaker 04: So what she saw during the 15 minutes, the fact that she didn't see her doing anything, doesn't tell you much, right? [00:09:13] Speaker 01: Well, respectfully, Your Honor, I mean, at this particular point in time, there was a return to work, right? [00:09:18] Speaker 01: And so it wasn't just Miss Stevenson that was coming into the office one time a week. [00:09:23] Speaker 01: Miss Fowler was coming into the office and previously had been coming into the office prior to Miss Stevenson coming into the office for this return to work. [00:09:31] Speaker 04: But I thought Miss Stevenson was called back to do this task when she was assigned to oversee this task in its entirety, right? [00:09:39] Speaker 01: I'm correct on this. [00:09:41] Speaker 01: Miss Stevenson was called back to work. [00:09:42] Speaker 01: And that's actually my point. [00:09:43] Speaker 01: Miss Fowler and Miss Gaston had already been coming into the office approximately one day a week or maybe two days a week to do various administrative tasks. [00:09:51] Speaker 01: Miss Stevenson was then called back. [00:09:53] Speaker 01: And so going back to the point... To do the mail. [00:09:56] Speaker 01: Yes, to do the mail. [00:09:57] Speaker 01: Yes. [00:09:58] Speaker 01: And to your point, Your Honor, about... To do the mail. [00:10:00] Speaker 03: And it was established that some of that mail was shredded, right? [00:10:04] Speaker 01: No, Your Honor. [00:10:04] Speaker 01: There is actually nothing in the record that supports that any of the mail was shredded. [00:10:08] Speaker 01: It was just in the shredder bin. [00:10:10] Speaker 01: Well, it's about to be shredded. [00:10:11] Speaker 01: Well, Your Honor, that's another issue in this case. [00:10:13] Speaker 01: We don't actually have any information related to the frequency of when the shred bins are actually empty. [00:10:20] Speaker 02: Why does that matter? [00:10:22] Speaker 02: If it's in a shredding bin that has a sign that says, to be shredded, why does it matter? [00:10:27] Speaker 01: It absolutely matters, Your Honor, and we think that it is very compelling in this case, because that evidence does not exist, because if you actually go through, and volume two of the appendix is primarily... Well, what they did is they looked at the layers in the shredder bin, and they found a bottom layer and a top layer. [00:10:47] Speaker 03: material put in by other people and she was in the office during the period between the date of the bottom layer and the top layer, right? [00:10:57] Speaker 01: Yes, Your Honor, and thank you for pointing that out. [00:10:59] Speaker 01: If I could just finish this last point because I think this will actually tie into the point that you just made. [00:11:03] Speaker 01: Volume 2 of the appendix actually has information in it that dates back all the way to 2019. [00:11:10] Speaker 01: I went through great lengths, quite frankly, to actually go through and reconcile the types of mail and documents here. [00:11:18] Speaker 01: And as a point to that, [00:11:19] Speaker 01: And there are loose papers here. [00:11:21] Speaker 01: There's a section where it's just envelopes. [00:11:24] Speaker 01: There's a section where there's loose papers. [00:11:25] Speaker 01: We don't actually know if all of these were a part of the mail or if they actually were just papers that happened to be in a shred bin for the past year or two since, Your Honor, Judge Goldberg. [00:11:35] Speaker 01: We don't actually know when the shred bins have actually been emptied. [00:11:38] Speaker 01: So we don't really know if these end marks, Judge Dyke, [00:11:42] Speaker 01: were really real, quite frankly. [00:11:44] Speaker 01: And because, to your point, Your Honor, these papers weren't there, the reality is there were three bins that the agency admits it pulled information and documents and mail from. [00:11:56] Speaker 01: We don't have, because of the chain of custody issue, we don't have any way to actually determine [00:12:02] Speaker 01: Your Honor, as you talk about the dates that Ms. [00:12:06] Speaker 01: Stevenson was in the office, is that came from the shredder bin that she actually put documents in, or the junk mail in. [00:12:14] Speaker 01: So at this point, it's a huge issue, we believe, for the agency, which is why we believe it also did not provide substantial evidence, and the board should not have found substantial evidence. [00:12:26] Speaker 02: The point is, there's no evidence as to the shredding schedule. [00:12:30] Speaker 02: Correct, Your Honor. [00:12:32] Speaker 02: envelopes that are important could have been purposely put in there by someone. [00:12:38] Speaker 01: Exactly, Your Honor. [00:12:39] Speaker 01: And to the point of that, just the location of these shredder bins. [00:12:43] Speaker 01: They're in the hallway. [00:12:44] Speaker 01: It's a common access point for many people. [00:12:46] Speaker 01: And we also have to keep in mind that these shredder bins were alerted as being full on June 27, 2022. [00:12:54] Speaker 01: Why is that significant? [00:12:55] Speaker 01: It's significant because it is five days [00:12:58] Speaker 01: after Ms. [00:12:59] Speaker 01: Stevenson completed the task which she asserted to Mr. Costello in email. [00:13:04] Speaker 01: She also indicated on that same day that she walked down to the third floor to deliver to Ms. [00:13:10] Speaker 01: Lamarca a huge box of mail that she identified was for enterprise services. [00:13:17] Speaker 01: And so because [00:13:18] Speaker 01: this mail, these shredder bins, so full that you could see from the entryway point of them what was the contents included. [00:13:27] Speaker 01: The point is that happened on the day that the entire department returned to work after being out of work for two years. [00:13:34] Speaker 01: And so during this time, Your Honor, and going back to the point about why it is important that we don't know the shredder schedule, there could have been plenty of documents in there, including mail, that not only was there for the past two years because of the COVID-19 pandemic that shut down all agency operations, but also we don't actually know, since they did compile these mailings from different shredder bins, if it actually comports with the bin that Ms. [00:14:00] Speaker 01: Stevenson actually used. [00:14:02] Speaker 01: And similar to that, [00:14:04] Speaker 01: As a point of that same argument, Ms. [00:14:07] Speaker 01: Stevenson had always indicated that she used one shredder bin. [00:14:12] Speaker 01: She never denied using a shredder bin. [00:14:14] Speaker 01: She never indicated or tried to conceal the fact that she did throw away a junk mail. [00:14:19] Speaker 03: And she was the only person with a motive to destroy the documents, right? [00:14:23] Speaker 01: Your honor we do believe that we've addressed that as well in our brief but just to touch on that point because I do see my time is winding down. [00:14:29] Speaker 01: We do believe that she was not the only person with motive because on June 27 2022 you had hundreds of people returning to work in the human resources department who now have potentially mail all over their desks that they wanted to get rid of as well because it was so outdated and old that they had no reason or use for it. [00:14:48] Speaker 01: And so because of this delimited inquiry that took place, we believe that is also evidence that should have been considered because only two people in this case were spoken to about the investigation. [00:15:04] Speaker 04: You're suggesting people came in and there was tons of their mail already delivered to them and their workstation? [00:15:11] Speaker 01: No, Your Honor, and I see my time has expired. [00:15:13] Speaker 01: So do you mind if I just continue addressing your question? [00:15:16] Speaker 01: No, Your Honor, that's not what I was attempting to portray for the panel. [00:15:19] Speaker 01: What I was trying to say is that on the return date of work, June 27, 2022, [00:15:25] Speaker 01: The first part of that is multiple people could have been throwing away things in the shredder bin. [00:15:29] Speaker 01: And then the other thing that I'm saying is that because there was a shutdown of the government operations for approximately two years, we don't actually know because we don't know how long the shred bin, how frequent the shred bins could actually been emptied or if it was one shred bin versus another shred bin on a certain schedule. [00:15:48] Speaker 03: I asked you earlier about the layers in the shred bin, and I thought it was established [00:15:53] Speaker 03: by the top layer and the bottom layer, which they had dates for, that the material in the middle was material that was supposed to be sorted by your client. [00:16:06] Speaker 01: Your Honor, thank you for clarifying that. [00:16:08] Speaker 01: And unfortunately, we thought that that was clear in our brief, so we appreciate you raising that. [00:16:12] Speaker 01: No, it was actually not established. [00:16:14] Speaker 01: All we know, and I can tell you where in the appendix some of these printer sheets are found, is appendix 215 to 218. [00:16:21] Speaker 01: These are print sheets. [00:16:22] Speaker 01: We have no clue because of the chain of custody issue, which we believe is a major issue in this case, where these printer sheets came from. [00:16:30] Speaker 01: We don't know if they came from bin one, bin two, bin three. [00:16:34] Speaker 01: But what we do know is Ms. [00:16:35] Speaker 01: Stevenson acknowledged that she only used one bin. [00:16:38] Speaker 01: We'll call that, for purposes of answering your question, bin one. [00:16:41] Speaker 01: And so if Ms. [00:16:42] Speaker 01: Fowler put printer sheets in bin two or three, yet all of the bins were pulled into the office of OWR at once by Ms. [00:16:51] Speaker 01: Fowler and pulled all the contents at once, [00:16:54] Speaker 01: And because everything was organized by type, we'd have no reason for understanding. [00:17:00] Speaker 04: I have one more quick question. [00:17:01] Speaker 04: Yes, Your Honor. [00:17:02] Speaker 04: Is the board allowed to rely on circumstantial evidence? [00:17:05] Speaker 01: Yes, Your Honor. [00:17:06] Speaker 03: Thank you. [00:17:07] Speaker 03: Okay, I think we're out of time. [00:17:09] Speaker 03: We'll give you a minute for rebuttal. [00:17:10] Speaker 01: Thank you very much. [00:17:16] Speaker 03: Mr. Bechrich. [00:17:32] Speaker 00: Good morning, Your Honors. [00:17:33] Speaker 00: May it please the Court? [00:17:35] Speaker 00: The Court should affirm the decision of the MSPB because the decision is supported by substantial evidence in the record. [00:17:41] Speaker 00: Specifically, I want to focus on three pieces of uncontroverted evidence that support the MSPB's decision and show that Congress proved the charge of conduct on becoming a federal employee by preponderance of the evidence. [00:17:53] Speaker 00: In addition, I will discuss the reasonableness of the removal penalty. [00:17:57] Speaker 00: So turning first to the three pieces of evidence. [00:17:59] Speaker 00: The first piece of evidence is that Ms. [00:18:01] Speaker 00: Stevenson explicitly stated that she disposed of mail that included old advertisement mail, like magazines, grad school mail, and those types of mail. [00:18:11] Speaker 00: Now to be sure, none of the 14 charges against her specifically cite the discarding of advertisements as the basis for the charge, but I think this evidence is still probative for two reasons. [00:18:23] Speaker 00: First, it shows that Ms. [00:18:24] Speaker 00: Stevenson was in fact distorting mail into at least one shred bin during the time in question. [00:18:30] Speaker 04: And she was the one in charge of sorting the mail and doing that job, right? [00:18:33] Speaker 00: That's correct. [00:18:34] Speaker 00: She was the one in charge of it. [00:18:35] Speaker 00: And as Your Honor pointed out, she was the only one assigned to the task other than 15 minutes that Ms. [00:18:40] Speaker 00: Gaston also worked on the assignment. [00:18:41] Speaker 04: Were these shred bins just located in the hallway so that everybody used them as essentially their own trash cans? [00:18:48] Speaker 00: I don't know that that's entirely clear from the record, but presumably they were in a copy room. [00:18:56] Speaker 00: I think it's important to point out, though, that during the time in question, the agency had not yet returned to work. [00:19:05] Speaker 00: And so it would not be that everybody would be using them as their own personal trash can, because there's a limited amount of people that were even coming to work. [00:19:12] Speaker 04: Well, your friend said something about after everybody had to come back that the times were overlapping. [00:19:16] Speaker 04: Is that not correct? [00:19:18] Speaker 00: Well, I think that the problem with that argument is the point that Judge Dyke made, is that we have a timeline here of when this mail was discarded. [00:19:26] Speaker 00: There is evidence based on the printer sheets that below the mail in question was a printer sheet dated May 16th, and above the mail in question was a printer sheet dated June 21st. [00:19:36] Speaker 00: So that limits the time frame in which the mail could have been discarded. [00:19:42] Speaker 04: She also made the point several times about there was no chain of custody. [00:19:47] Speaker 04: well, I mean, we're not in a criminal proceeding here, but whoever went in and looked at it, he asked someone from HR to come in and observe what he was doing, right? [00:19:58] Speaker 00: That's absolutely right. [00:20:00] Speaker 00: They certainly make an argument regarding chain of custody. [00:20:05] Speaker 00: The cases cited in their brief relate to chain of custody with respect to specimen testing, which have certain procedures that have to be followed. [00:20:17] Speaker 00: Plainly inapplicable here. [00:20:19] Speaker 00: I'm certainly unaware of any chain of custody procedures that were not followed, that were required to be followed. [00:20:26] Speaker 00: In this case, as Your Honor points out, whatever the mail bins or the shred bins were emptied, there was another official from the department supervising to confirm what was found in those bins. [00:20:41] Speaker 03: Did both of those people testify? [00:20:44] Speaker 03: Did both of those people testify? [00:20:46] Speaker 00: I'm not sure if Miss Lewis testified before the MSPB, but certainly her statements are in the record, and that can be found at page 141 of the appendix. [00:21:00] Speaker 00: Turning back to Ms. [00:21:01] Speaker 00: Stevenson's statements, again, I think what it shows is that she did throw away mail at the end of the time in question. [00:21:08] Speaker 00: And I think it's particularly relevant because she had already pushed back against the notion that she should be performing the mail distribution project by herself. [00:21:16] Speaker 00: And at least part of her solution to that problem, we know from her own admission, was to discard mail. [00:21:22] Speaker 00: And the second reason I think it's relevant is that if advertisements were intermingled... Wait, I didn't get that last point. [00:21:28] Speaker 04: You're saying from her own admission? [00:21:31] Speaker 04: She discarded mail. [00:21:33] Speaker 04: She didn't admit to discarding the mail that's in question here. [00:21:37] Speaker 00: Correct. [00:21:38] Speaker 00: My point is that she admitted to discarding some portions of mail. [00:21:42] Speaker 03: Junk mail. [00:21:43] Speaker 00: Junk mail, correct. [00:21:45] Speaker 00: Correct. [00:21:47] Speaker 00: But without instruction to do so. [00:21:50] Speaker 00: And if this junk mail was intermingled with the mallet issue, then that strong evidence that the mallet issue was being thrown away at the same time as the junk mail, which takes us to the second piece of evidence, which is Mr. Costello's testimony, in which he testified that the junk mail was found intermingled with the mallet issue in this case. [00:22:08] Speaker 00: And so that's important. [00:22:10] Speaker 00: Because this junk mail was intermingled with the mail-it issue, that's certainly evidence that whoever threw away the junk mail also threw away the mail-it issue. [00:22:19] Speaker 00: Now, again, Ms. [00:22:20] Speaker 00: Stevenson tries to discount that evidence by arguing that Mr. Costello's testimony is not credible. [00:22:26] Speaker 00: But this court will only set aside a credibility determination if it's inherently improbable or discredited by undisputed fact. [00:22:33] Speaker 00: Simply put, Ms. [00:22:35] Speaker 00: Stevenson offers no factual basis to discredit Mr. Costello's testimony and thus this court should accept what the MSPB found that he credibly testified that junk mail was intermingled with the mail-in issue. [00:22:47] Speaker 00: And then the third piece of evidence, which we would now discuss, are the printer sheets confirming the timeline of when this mail was thrown away. [00:22:57] Speaker 00: And that timeline, it matches very closely with the timeline in which Ms. [00:23:03] Speaker 00: Stevenson claims to have been performing the mail distribution project. [00:23:07] Speaker 00: And so in sum, the evidence shows four things. [00:23:11] Speaker 00: One, that Ms. [00:23:11] Speaker 00: Stevenson was assigned to a project that she believed was too big for just one person. [00:23:15] Speaker 00: that while completing the project, she admits to discarding mail, that the very same type of mail she admits to discarding was intermingled with the mail at issue in this case that she was charged with discarding, and that the mail was in all likelihood discarded at the same time that Ms. [00:23:31] Speaker 00: Stevenson was working on the project. [00:23:33] Speaker 03: In light of... Well, the opposing counsel suggests that the people who received the mail on their desks might have been overwhelmed by the mail [00:23:44] Speaker 03: and they might have been the ones to shred it. [00:23:47] Speaker 03: Is that consistent with the record? [00:23:48] Speaker 03: I thought that the shredding took place before the mail distribution to the other offices. [00:23:58] Speaker 00: Your Honor, there's certainly no evidence in the record that any other employee threw away their mail. [00:24:04] Speaker 03: I don't understand that, but I was asking about motive. [00:24:09] Speaker 03: At some point, she finishes the project. [00:24:11] Speaker 03: I forget what the date is. [00:24:12] Speaker 03: She advises her supervisor she's finished the project. [00:24:17] Speaker 03: And she puts the mail in a box. [00:24:21] Speaker 03: What's the date of that? [00:24:23] Speaker 00: June 22nd is when she advises her supervisor. [00:24:26] Speaker 00: So that's after the shredding took place. [00:24:30] Speaker 00: After the mail was placed into the shredder. [00:24:33] Speaker 00: Yes, that's correct. [00:24:35] Speaker 03: But that's not consistent with the idea that the mail was distributed to other people and then those people shredded it. [00:24:42] Speaker 00: That's correct, Your Honor. [00:24:43] Speaker 00: And so based on all the evidence we discussed, I'm not sure if another conclusion can be reached other than that Ms. [00:24:52] Speaker 00: Stevenson was responsible for the discarded mail. [00:24:54] Speaker 00: But at the very least, the board's decision is supported by substantial evidence. [00:24:59] Speaker 00: And the MSBB's determination with respect to the charge should be affirmed. [00:25:02] Speaker 02: I think you're right where my question is going to be, which is the sanction. [00:25:07] Speaker 02: Correct, Your Honor. [00:25:09] Speaker 02: What were the other possible sanctions other than the one that was imposed? [00:25:15] Speaker 02: Was it just removal and that's it? [00:25:17] Speaker 02: Were there other alternatives? [00:25:18] Speaker 00: So what the deciding official said is that due to the seriousness of the offense and the lack of trust that the agency had in Ms. [00:25:30] Speaker 02: Stevenson moving forward to... I understand why they imposed the sanction of removal. [00:25:34] Speaker 02: I'm asking was there a lesser sanction available? [00:25:38] Speaker 00: Well, I think that's where I was getting, is that what the agency decided is that there was no lesser available sanction because they simply had no trust in her to be able to do her job moving forward. [00:25:49] Speaker 04: But in theory, just to be responsive to the question, you could suspend for 15 days, you can suspend for 30 days, you can demote, [00:25:57] Speaker 04: You can do all sorts of things. [00:25:59] Speaker 04: That's my question. [00:25:59] Speaker 00: Okay, my apologies, Your Honor. [00:26:01] Speaker 00: Certainly, yes. [00:26:02] Speaker 00: I think that the agency was not limited in its discretion to choose a penalty. [00:26:09] Speaker 00: The question now is in exercising that discretion, were the agencies actually totally unwarranted based on all of the factors? [00:26:17] Speaker 00: And certainly we believe that they were not. [00:26:20] Speaker 00: Ms. [00:26:20] Speaker 00: Stevenson primarily makes two arguments with respect to the penalty. [00:26:24] Speaker 00: First is that the charge was not proved. [00:26:26] Speaker 00: And of course we agree that the charge is approved. [00:26:28] Speaker 00: The penalty would likewise be improper. [00:26:31] Speaker 00: But as we've discussed in our brief and here today, we certainly believe that substantial evidence supports the finding that commerce proved the charge by proponents of the evidence. [00:26:43] Speaker 00: And so then the second argument that Ms. [00:26:44] Speaker 00: Stevenson makes [00:26:46] Speaker 00: is with respect to only one of the Douglas factors. [00:26:48] Speaker 00: And she maintains that she cannot show remorse for an act that she denies culpability for, and thus that factor should not have weighed against her. [00:26:57] Speaker 00: At the outset, the board addressed this argument. [00:26:59] Speaker 00: The board explained that when an appellant maintains that they have done nothing wrong, that reflects poorly on their ability or potential for rehabilitation. [00:27:09] Speaker 00: But I think maybe even more importantly, as the board noted, the deciding official evaluated every Douglas Factor in making her determination that removal was a proper penalty. [00:27:20] Speaker 00: The highly relevant ones, as I mentioned, are the charge against Ms. [00:27:25] Speaker 00: Stevenson was serious, something that this court has said as well, that discarding mail is a serious offense that can warrant removal, and that, again, the agency had lost trust in Ms. [00:27:37] Speaker 00: Stevenson to do her job. [00:27:38] Speaker 00: In light of the findings by Commerce, based on all of the factors, the board correctly concluded that the penalty of removal was not totally unwarranted and thus fell within the agency's discretion in choosing a penalty. [00:27:54] Speaker 02: Her title for Commerce was Administrative Officer? [00:27:57] Speaker 00: That's correct. [00:27:58] Speaker 02: What does an Administrative Officer do? [00:28:00] Speaker 00: The administrative officer, my understanding, helps with these administrative sort of tasks so that her specific office, an HR office, is able to inform commerce employees of rights related to their job functions, which is why, again, this particular offense is problematic. [00:28:26] Speaker 00: I mean, it's in the record, but the documents, the types of mail that were disposed of were significant. [00:28:34] Speaker 00: The background checks. [00:28:37] Speaker 00: The background checks. [00:28:38] Speaker 00: 104 pieces of mail concerning wage garnishments. [00:28:41] Speaker 00: 163 pieces of mail regarding unemployment claims. [00:28:43] Speaker 02: I'm certainly not diminishing the allocation. [00:28:46] Speaker 02: But I'm just wondering, in the scheme of importance of the jobs that she did, was sorting and discarding mail high on the party list. [00:28:55] Speaker 02: And I guess it goes to the penalty post. [00:28:59] Speaker 00: I think so. [00:28:59] Speaker 00: I mean, certainly during the time in question, I think Mr. Costello made that clear that this is an important function and needed to be completed so that the employees of the department, again, received their mail, received the things that may require responses. [00:29:17] Speaker 00: And so I certainly believe that that was an important function that she was performing. [00:29:26] Speaker 00: If the court has no further questions, we ask that the court affirm the decision of the MSPB. [00:29:33] Speaker 03: Thank you. [00:29:54] Speaker 01: Thank you, Honors. [00:29:55] Speaker 01: There's certainly so much I would like to address, so I'll try to do it as quickly as possible in the event that you all don't have any specific questions. [00:30:02] Speaker 01: So first and foremost, Your Honor, as it relates to the location of the agency's policy regarding disciplinary actions, that can be found at appendix specifically for this conduct 251 in the joint appendix. [00:30:16] Speaker 01: And so to answer your question for the general misconduct, the written reprimand to remove, the scheme is written reprimand to removal. [00:30:26] Speaker 01: It could also be five days suspension to removal, 30 days suspension to removal. [00:30:30] Speaker 01: So there's certainly a progressive disciplinary option here. [00:30:33] Speaker 01: Also, just to remind everyone that the June 27, 2022 date is the date that everyone came back to the office. [00:30:39] Speaker 01: this isn't just some random date and that's also the date that the the bins being over flooded if you will was identified they were not identified on june 23rd june 24th or any other day prior to june 27 so presumably because there were other people coming back into the office preparing for the return they would have seen those bins if it was in fact overflowing due to miss stevenson's own conduct and actions uh your honor i see this oh i have eight more minutes okay [00:31:05] Speaker 01: 8 seconds. [00:31:06] Speaker 01: Okay so we also believe that the penalty here is too severe quite frankly. [00:31:10] Speaker 01: There is no evidence that shredding actually took place. [00:31:13] Speaker 01: The fact that Miss Stevenson did admit to throwing away what she was consistent about, advertisements and junk mail, is not dispositive of the fact that she threw away 594 pieces of agency official documents. [00:31:24] Speaker 01: She's not even charged with throwing away junk mail. [00:31:26] Speaker 01: And so the fact that she's charged with doing something she didn't even admit to doing is also not dispositive of anything. [00:31:31] Speaker 01: And again, Your Honor, to the question that you asked about for clarification, the printer sheets were intermingled. [00:31:37] Speaker 01: It wasn't on top. [00:31:38] Speaker 01: It wasn't on bottom. [00:31:38] Speaker 01: Because of the chain and custody issue, we actually don't know where they were. [00:31:41] Speaker 01: We don't know what bin they were in. [00:31:43] Speaker 03: OK, I think we're about out of time. [00:31:44] Speaker 01: OK, thank you, Your Honor. [00:31:45] Speaker 01: Thank you.