[00:00:00] Speaker 03:
Leads to our second case which is number 24 1735 Williams versus selective service system Okay, mr. Aptali Good morning your honors may it please the court my name is Stephanie Aptali And I represent the petitioner Kevin Williams in the instant appeal against the selective service system at this time I'd like to reserve three minutes for rebuttal Okay, thank you

[00:00:26] Speaker 03:
Petitioner respectfully requests that this honorable court reverse the initial decision that held that the agency met its burden in regarding the removal decision and presented sufficient evidence to substantiate that removal.

[00:00:39] Speaker 03:
I would like to highlight two specific errors that the administrative judge made that are substantial and reversible.

[00:00:48] Speaker 03:
First, the judge applied or made an error of law when it failed when

[00:00:53] Speaker 03:
He and then she, there were two judges, failed to apply, or incorrectly applied, the Bornikoff factors in determining whether Mr. Clark's affidavit should be admitted as a substitute for Mr. Clark's actual testimony.

[00:01:07] Speaker 03:
And the judge made an error when evaluating the substantial evidence offered by the agency in support of its case in chief against Mr. Williams.

[00:01:18] Speaker 00:
Can I ask you just a question?

[00:01:20] Speaker 03:
Yes, Your Honor.

[00:01:21] Speaker 00:
happened during the 60-day PIP?

[00:01:25] Speaker 03:
That's an excellent question, Your Honor.

[00:01:26] Speaker 03:
It was Mr. Williams' testimony that he actually did not work the majority of the 60-day PIP.

[00:01:32] Speaker 03:
He was only working 21 days.

[00:01:34] Speaker 03:
The rest of the time, and this is testimony that he provided during the hearing, the rest of the time he was out on medical leave.

[00:01:40] Speaker 00:
So did he ask that the time, but OK, the rest of the time, but he was there for part of the time, did he actually

[00:01:49] Speaker 00:
work and perform tasks during that time related to the requirements of the position of the GS-13 which he held?

[00:02:00] Speaker 03:
That is Mr. Williams' position that he attempted to try to do what Mr. Clark had set out.

[00:02:06] Speaker 03:
However, his request for training, he signed up for additional training.

[00:02:12] Speaker 03:
He, I believe, took one of the training courses at some point during that period of time.

[00:02:17] Speaker 03:
He asked and tried to remediate the issue with connecting to the server.

[00:02:21] Speaker 03:
It wasn't until the end of March he received the performance improvement plan, March 1st, 2017.

[00:02:26] Speaker 02:
It wasn't until March 28th that he first met with Mr. Clark to have those meetings to go over his... Isn't the answer that he didn't do any work during the PIP period, but that he claimed that he couldn't because he wasn't properly trained?

[00:02:45] Speaker 03:
Yes, Your Honor.

[00:02:46] Speaker 03:
And in addition, he wasn't able to get the resources that he needed to do the work.

[00:02:51] Speaker 03:
So he couldn't do what was being asked of him because he wasn't provided those opportunities.

[00:02:57] Speaker 03:
He wasn't getting the assistance that he needed.

[00:02:59] Speaker 03:
He availed himself to what was being offered to him, which was a series of YouTube videos from Mr. Clark.

[00:03:06] Speaker 03:
But that was not sufficient to get him up to speed to where he needed to be in his position to be able to complete those tasks.

[00:03:14] Speaker 04:
So do you agree that Mr. Williams did not complete any of his PIP tasks?

[00:03:22] Speaker 03:
In that 21-day period, I don't know that he was able to accomplish them to the level that they were written in the PIP.

[00:03:30] Speaker 03:
Mr. Williams did contest and dispute the communication, for example.

[00:03:36] Speaker 03:
He did communicate with Mr. Clark.

[00:03:38] Speaker 03:
He did reach out, he tried to make those efforts.

[00:03:41] Speaker 03:
I do think that there are things that he, tasks that are in the PIP that he was not able to complete because he didn't have access and he wasn't given the time and he didn't have the training.

[00:03:52] Speaker 04:
Was there a multi-month period where he didn't check his assigned tasks in TFS?

[00:03:58] Speaker 03:
TFS is the server that he did not have access to.

[00:04:00] Speaker 03:
So yes, he couldn't access it.

[00:04:02] Speaker 03:
There was no way for him to be able to check anything in it if he couldn't get into it.

[00:04:07] Speaker 03:
And he brought it up to Mr. Clark constantly, which is his testimony.

[00:04:13] Speaker 03:
And there was no effort to try to give him access to that.

[00:04:18] Speaker 00:
Okay.

[00:04:19] Speaker 00:
But we've, I mean, we're not here, as you well know, as fact-finders.

[00:04:23] Speaker 00:
And the administrative judge heard the witnesses, or at least in Mr. Clark's case, people had the affidavit, and your client could testify as to whether or not what Mr. Clark was saying was accurate.

[00:04:38] Speaker 00:
How are we on appeal?

[00:04:40] Speaker 00:
Even the few comments you've made today about the training and what he did in the training, what he didn't, that's the AJ's job, not our job.

[00:04:50] Speaker 00:
And their conclusions seem adequate, at least, to establish the lower burden that you have on chapter 43 cases than you have on chapter 75 cases.

[00:05:02] Speaker 00:
Tell me how we as an appellate court with a limited role here can dislodge all of the findings made by the AJ.

[00:05:11] Speaker 03:
Your Honor, we're on appeal here in part because of the admission of Mr. Clark's testimony and the weight of that testimony over the testimony of the live witnesses that actually did testify.

[00:05:23] Speaker 00:
And you're not, there's no.

[00:05:27] Speaker 00:
Actual legal requirement that he had testified, right?

[00:05:30] Speaker 00:
The board has rules with respect to what they do.

[00:05:34] Speaker 00:
And Mr. Clark had since left the federal government.

[00:05:36] Speaker 00:
I mean, this does happen.

[00:05:38] Speaker 00:
And so this is not an extraordinary or unlawful or improper thing that the board did, right?

[00:05:45] Speaker 03:
I disagree, it actually runs afoul of the Bornikoff standard and factor test that has eight factors that the board set out in Bornikoff to evaluate the use of a out-of-court statement and its weight within and comparing it to or in lieu of live testimony.

[00:06:04] Speaker 03:
It's the agency's burden to meet, as I know the court knows, to meet its standard of proof.

[00:06:12] Speaker 03:
And the agency needs to call the witnesses that it needs to call to meet that standard of proof.

[00:06:16] Speaker 03:
And it is petitioners' position that it did not do so.

[00:06:19] Speaker 03:
And if the judge had performed a proper Bornekoff factor analysis, that affidavit would have never come in.

[00:06:29] Speaker 03:
It would not have been included and it wouldn't have been relied upon.

[00:06:32] Speaker 03:
Additionally, the judge allowed Mr. Jones, the only witness for the agency, to improperly testify about facts that he had no first-hand knowledge and could not state.

[00:06:47] Speaker 02:
So it was an improper... Which born-across factor isn't satisfied here with respect to the Clark declaration?

[00:06:56] Speaker 03:
Your Honor, I'd argue all but one.

[00:06:59] Speaker 03:
The first one is the availability of the persons with first-hand knowledge to testify at hearing.

[00:07:03] Speaker 03:
The agency made no effort or no proffer about Mr. Clark's availability.

[00:07:08] Speaker 02:
But Clark was available to you.

[00:07:10] Speaker 02:
AJ said you could subpoena him and get him to appear.

[00:07:14] Speaker 03:
But it is not petitioner's burden approved to meet.

[00:07:17] Speaker 03:
The petitioner does not have to make the agency's case for them or present the witnesses required to meet the agency's case.

[00:07:23] Speaker 03:
So even though he was an approved witness, the agency never sought to get his testimony, which it could have done.

[00:07:32] Speaker 03:
It could have done that as well.

[00:07:33] Speaker 03:
But it is not petitioner's responsibility to make the agency's case for them.

[00:07:39] Speaker 03:
Additionally, the statement of the out-of-court declarant was signed in an affidavit form, which it was, but there's an and part to that factor.

[00:07:49] Speaker 03:
And whether anyone witnessed the signing, there was no evidence proffered that the statement was actually from Mr. Clark, that that was his signature, that he actually wrote it.

[00:07:58] Speaker 03:
No one testified to that.

[00:07:59] Speaker 03:
There was no authenticity of the statement.

[00:08:02] Speaker 02:
Is that disputed by your client at the hearing?

[00:08:04] Speaker 03:
Yes, there was an authenticity objection made by the counsel at the time during the hearing.

[00:08:10] Speaker 03:
There was no authenticity done.

[00:08:12] Speaker 03:
It was submitted after.

[00:08:14] Speaker 02:
I don't remember that that was one of the theories that you briefed on appeal here.

[00:08:19] Speaker 02:
Could you show me where that appears in the blue brief?

[00:08:23] Speaker 03:
In the brief?

[00:08:24] Speaker 03:
Yes, Your Honor.

[00:08:27] Speaker 03:
Court's indulgence.

[00:08:38] Speaker 03:
It starts on page 21 of Petitioner's case in chief.

[00:08:46] Speaker 03:
And then.

[00:08:59] Speaker 02:
Where's the question about the signature?

[00:09:03] Speaker 03:
Sorry.

[00:09:04] Speaker 03:
The objection is it's discussed on page 26 of petitioner's brief.

[00:09:12] Speaker 03:
And it cites to the testimony in the transcript out of appendix 221.

[00:09:29] Speaker 03:
There's actually a 26.

[00:09:31] Speaker 02:
Where is this?

[00:09:32] Speaker 03:
I'm sorry.

[00:09:34] Speaker 03:
Council, again, timely objected that this was highly prejudicial because she had not had the opportunity to cross.

[00:09:39] Speaker 02:
Yeah, but where's the question about the signature being bound?

[00:09:46] Speaker 03:
The authenticity of it.

[00:09:47] Speaker 03:
That is a part of the discussion in the transcript that is exchanged with the judge.

[00:09:54] Speaker 03:
It's a multi-page discussion about the admission.

[00:09:57] Speaker 02:
Where is it in the bill brief?

[00:10:10] Speaker 03:
I do believe that the exchange is cited, but I don't know that it's being stated the way in which I am currently stating it.

[00:10:18] Speaker 00:
OK.

[00:10:18] Speaker 00:
So Bernkopf was an MSBB case.

[00:10:21] Speaker 03:
That's correct, Your Honor.

[00:10:22] Speaker 00:
And I think the government relies on its side on one of our opinions, which is Cooley.

[00:10:29] Speaker 00:
What's your response to that case, which I think they claim is pretty close to our opinion?

[00:10:37] Speaker 03:
I'm sorry, I didn't hear you, I'm sorry.

[00:10:38] Speaker 03:
Cooley, K-E-W-L-E-Y.

[00:10:59] Speaker 03:
The facts are slightly different.

[00:11:00] Speaker 03:
The court has found, held in the variety of decisions that mention the Bornekoff standard, that it can review the standard.

[00:11:09] Speaker 03:
As you pointed out, it is a board standard.

[00:11:11] Speaker 03:
It is not a court standard.

[00:11:13] Speaker 03:
It is not statute.

[00:11:15] Speaker 03:
And it is a case by case.

[00:11:18] Speaker 03:
evaluation.

[00:11:19] Speaker 03:
Where the judges, both of them, went afoul at the hearing and then in the initial decision is the discussion of it.

[00:11:29] Speaker 03:
Well, there is no discussion of it in the initial decision when looking at the agency's case in chief.

[00:11:35] Speaker 03:
She does not go over the born-a-cough factors at all when discussing it.

[00:11:40] Speaker 03:
It is discussed during the hearing, a different judge,

[00:11:46] Speaker 03:
But he says he will review and weigh it appropriately.

[00:11:51] Speaker 03:
But that analysis was not done because that judge did not issue the decision.

[00:11:56] Speaker 03:
And the later judge's decision does not include that analysis.

[00:11:59] Speaker 00:
But I'm asking, at page 43, they cite, starting at page 42, they say, you're suggesting that the agency can't bring the proof by relying on hearsay evidence.

[00:12:12] Speaker 00:
And then they cite, they quote our opinion in Cooley,

[00:12:16] Speaker 00:
as saying, it's long been settled that hearsay evidence may be used for board proceedings and may be accepted as preponderant evidence even without corroboration if, to a reasonable mind, the circumstances are such evidence to lend its credence.

[00:12:33] Speaker 00:
And then they go on to cite cases where this is especially true in 43 cases which have a lower standard.

[00:12:40] Speaker 00:
So do you have a response to that?

[00:12:44] Speaker 03:
It is, as you said, it's a factor by factor, case by case situation.

[00:12:48] Speaker 03:
In that court, if I understand that decision correctly, there was an analysis done.

[00:12:54] Speaker 03:
It's correct that it can be considered, but the board judges need to go through that analysis.

[00:13:02] Speaker 03:
And the fact that the judges

[00:13:05] Speaker 03:
Both talk about the analysis the case itself born a cough is the actual word is in the hearing transcript multiple times the fact that they mentioned it means that they were understanding that they had to be a standard applied to this case and it was not the factors you argue in your blue brief that the factors weren't satisfied I'm sorry.

[00:13:26] Speaker 02:
I didn't hear the start of you argue in your blue brief that the burn a car factors weren't satisfied

[00:13:31] Speaker 03:
Yes, Your Honor.

[00:13:32] Speaker 03:
I believe I was page 20.

[00:13:38] Speaker 03:
Well.

[00:13:40] Speaker 02:
Did you cite Warnockoff?

[00:13:41] Speaker 02:
It's not in your table of authority.

[00:13:46] Speaker 03:
Yes, Warnockoff is.

[00:13:53] Speaker 03:
The case was cited in the reply brief.

[00:13:55] Speaker 03:
My apologies.

[00:13:55] Speaker 03:
The name itself appears.

[00:13:56] Speaker 02:
It wasn't cited in the blue brief.

[00:13:58] Speaker 03:
That is correct, Your Honor.

[00:13:59] Speaker 02:
This argument wasn't made in the blue brief.

[00:14:02] Speaker 03:
The argument you're making now about failure to analyze the born-of-claw factors was not made in the blue brief not in the manner in which I'm making it now no I Don't think it why the credibility of the statement the lack of support for the statement was discussed, but not Specifically the eight factor analysis that's correct.

[00:14:24] Speaker 03:
It was discussed in the reply brief pages one and eight and

[00:14:35] Speaker 03:
Without Mr. Clark's statement being a part of the record, the agency could not meet its burden to establish the facts necessary to sustain the removal.

[00:14:50] Speaker 03:
And respectfully, we request that the court reverse the lower court's decision and find that they failed to meet its burden.

[00:15:01] Speaker 02:
The Clark Declaration was relied on by the A.J.

[00:15:04] Speaker 02:
only for a limited purpose, and that was on the whistleblowing thing, which is your burden of proof.

[00:15:12] Speaker 03:
I disagree, Your Honor.

[00:15:14] Speaker 03:
So in the decision, she doesn't say it, but she said Clark said Clark examined.

[00:15:19] Speaker 03:
And she cites to the part of the record, tab three and the pages therein, to his affidavit, I believe, at least three times in her analysis.

[00:15:31] Speaker 03:
So while she doesn't say it, she uses words like Clark examined, Clark said, Clark stated.

[00:15:37] Speaker 03:
Well, he never stated anything during the hearing.

[00:15:39] Speaker 03:
The only way that he stated anything was in this statement.

[00:15:45] Speaker 03:
So she did rely pretty throughout her analysis on this statement.

[00:15:50] Speaker 02:
OK, we're out of time.

[00:15:51] Speaker 02:
We'll give you two minutes for a bottle.

[00:15:53] Speaker 03:
Thank you, Your Honor.

[00:15:54] Speaker 02:
Mr. Carr.

[00:16:15] Speaker 02:
Could you address that last point?

[00:16:17] Speaker 02:
I read AJ's decision as saying that she was relying on the Clark Declaration only for a limited purpose, that is, as to whether he had been disciplined in connection with these earlier events, eight or nine years earlier.

[00:16:35] Speaker 02:
Did she rely on the Clark Declaration for other purposes?

[00:16:39] Speaker 02:
May I please escort?

[00:16:40] Speaker 01:
Sure, I'll start with that.

[00:16:42] Speaker 01:
So there are a couple of, I have the same general understanding as you do, Judge Dyke.

[00:16:48] Speaker 01:
She talks about the affidavit at Appendix 31 in connection with this whistleblower defense.

[00:16:59] Speaker 01:
There are a couple of stray references to the declaration at other points.

[00:17:04] Speaker 01:
For example, the fact that Mr. Clark was the supervisor at Appendix 4, Clark's EEO affidavit is cited.

[00:17:12] Speaker 01:
I don't see any of those other references as being material or disputed.

[00:17:16] Speaker 01:
And we focused on the Appendix 31 discussion because Mr. Williams's blue brief focused on that discussion.

[00:17:25] Speaker 01:
So we didn't understand Mr. Williams be raising any challenges besides the whistleblower use of the Clark affidavit.

[00:17:33] Speaker 01:
So on that point, there is a footnote in our brief that makes that point more clearly.

[00:17:38] Speaker 01:
So on the affidavit, as the court noted, it is undisputed, I think, that hearsay can be allowed in board proceedings.

[00:17:48] Speaker 01:
Really, the question in a case like this is, how much weight does an affidavit like this get?

[00:17:55] Speaker 01:
The AJA is pretty careful about setting out the factors and then explaining that her use of the Clark affidavit is for a very limited purpose to address a very specific point related to an issue on which Mr. Williams bears the burden of proof, and that is whether Mr. Clark was disciplined in 2009.

[00:18:17] Speaker 01:
It's important to note that the contrary evidence on that point is equivocal testimony from Mr. Williams himself, who didn't have any basis as far as I know besides what he heard second or third hand for thinking that Mr. Clark might have been suspended.

[00:18:33] Speaker 01:
So it's used for a very limited purpose based upon this long applied test.

[00:18:40] Speaker 01:
There was no legal error, certainly, because I don't think there's any dispute with using that MSPB case from the 1980s, those factors.

[00:18:49] Speaker 01:
It's really either abusive discretion or substantial evidence that the court's looking at how those factors were applied to this case.

[00:18:56] Speaker 01:
So that's the affidavit.

[00:18:59] Speaker 01:
I think to address the other sort

[00:19:02] Speaker 01:
big picture arguments that Mr. Williams is making on the training.

[00:19:08] Speaker 01:
He's contesting whether he received appropriate training to do the work he was assigned.

[00:19:14] Speaker 01:
I don't think he disputes.

[00:19:15] Speaker 01:
A lot of this case is undisputed.

[00:19:18] Speaker 01:
The validity of the performance standards undisputed, the notice undisputed,

[00:19:23] Speaker 00:
What about the stuff that we started with your friend about, which is the currents of the PIP and what went down on the PIP with respect to training and also his lack of access to the server and things like that?

[00:19:34] Speaker 00:
That seems to be in dispute.

[00:19:36] Speaker 01:
Those I think are the points that are in dispute Judge Prost.

[00:19:39] Speaker 01:
So on the training,

[00:19:41] Speaker 01:
This is relitigating an issue that was decided by the A.J.

[00:19:45] Speaker 01:
at appendix 18 and 19.

[00:19:48] Speaker 01:
The A.J.'

[00:19:48] Speaker 01:
's view, which is reasonable, is first, Mr. Williams' resume suggested he could do this work.

[00:19:54] Speaker 01:
It's a work that requires subject matter expertise.

[00:19:58] Speaker 01:
He was offered

[00:19:59] Speaker 01:
certain forms of training.

[00:20:01] Speaker 01:
You can see that at appendix 984 and appendix 914.

[00:20:05] Speaker 01:
In his testimony, Mr. Williams said he took three courses in 2016 and 2017.

[00:20:11] Speaker 01:
He had a book that was bought for him.

[00:20:14] Speaker 01:
It was the only book he requested.

[00:20:17] Speaker 01:
But he ultimately insisted on classroom training.

[00:20:21] Speaker 01:
He didn't think YouTube training was appropriate for him.

[00:20:25] Speaker 01:
So he insisted on formal classroom training, which of course cost money.

[00:20:28] Speaker 01:
Agencies have budget constraints.

[00:20:30] Speaker 01:
But all these issues really are about, was he given a reasonable opportunity to improve?

[00:20:35] Speaker 01:
That's the big picture question.

[00:20:37] Speaker 02:
But what he really seems to be saying is, I shouldn't have gotten this job in the first place because I wasn't qualified.

[00:20:42] Speaker 01:
Right.

[00:20:43] Speaker 01:
I think that's right.

[00:20:44] Speaker 01:
And the agency in 2016, it's important that they offered him a reassignment.

[00:20:50] Speaker 01:
So just backing up for a second, he was promoted in 2012 from a GS12 to a GS13 position.

[00:20:56] Speaker 01:
He had been working in the help desk for a number of years doing help desk related tasks.

[00:21:01] Speaker 01:
He's promoted to this programmer position in 2012.

[00:21:04] Speaker 01:
Between 2012 and 2016,

[00:21:06] Speaker 01:
He continues to do help desk GS-12 level work while getting paid a GS-13 salary.

[00:21:13] Speaker 01:
In 2016, the agency has a new SES come aboard, do a review of positions to make sure people are working in line with their position titles, that their work, their pay is justified by the work they're doing.

[00:21:28] Speaker 01:
They realize Mr. Williams is working out of his pay grade doing help desk work while getting a pay.

[00:21:33] Speaker 00:
Didn't he also complain about the help desk work, a sort of disability thing that he wanted out of the help desk?

[00:21:40] Speaker 01:
He did talk about, there are references to that at different points in the record as well.

[00:21:45] Speaker 01:
But the agency does give him an opportunity.

[00:21:48] Speaker 01:
If you can't do the GS-13 work, you have a choice.

[00:21:51] Speaker 01:
You either need to perform at the GS-13 level or go back to a GS-12 role.

[00:21:55] Speaker 01:
he decides he wants to continue getting the GS13 salary.

[00:22:00] Speaker 01:
So he wants to continue doing the GS13 work.

[00:22:02] Speaker 01:
At that point, it's incumbent upon him to be able to perform at that level.

[00:22:06] Speaker 01:
This is mid-2016.

[00:22:09] Speaker 01:
November 2016, he gets a notice saying he's performing at an unacceptable level.

[00:22:14] Speaker 01:
The same elements that later become the basis of the PIP doesn't improve, doesn't seem to be checking the server that has all his work, the SharePoint-like site.

[00:22:25] Speaker 01:
And then fast forward several months later to March of 2017, that's when the PIP comes.

[00:22:31] Speaker 01:
He continues to not do any work.

[00:22:32] Speaker 02:
What about the server access claim?

[00:22:35] Speaker 01:
Right.

[00:22:35] Speaker 01:
So on the server access point, this is another issue that was addressed by the AJA.

[00:22:45] Speaker 01:
Starting in mid 2016 the agency starts to He raises the issue a couple times the agency tries to help him with it And the issue being server issue being yeah, he's not getting I guess he's not getting access He says he's not getting access sometimes.

[00:23:02] Speaker 01:
He says he wasn't trained properly so whether it's an access issue or training issues a little unclear and

[00:23:07] Speaker 01:
But what the AJ relies on is testimony from Mr. Jones saying, this is elementary.

[00:23:14] Speaker 01:
You'd expect anybody to be able to, at his level, should be able to use the server first.

[00:23:21] Speaker 01:
Second, he admits in his testimony, Mr. Williams does, that he just eventually gave up on trying to access the server.

[00:23:30] Speaker 00:
Was access to the server something that he was denied access or that he didn't have the technical skills

[00:23:36] Speaker 01:
Right, so what the AJ said is he should have been able to figure it out based on the record that was before her.

[00:23:45] Speaker 01:
And part of that is he stopped trying, he admits, at appendix 40415, he decided he was going to stop trying to get access.

[00:23:53] Speaker 04:
It sounds like there was no, he wasn't denied access, right?

[00:23:56] Speaker 04:
It's more so a lack of trying.

[00:23:58] Speaker 04:
in terms of access to the server.

[00:23:59] Speaker 04:
Is that true?

[00:24:00] Speaker 01:
I think the record supports that.

[00:24:02] Speaker 01:
I think his position, at some points he suggested that his credentials didn't work.

[00:24:08] Speaker 01:
But he could have addressed that.

[00:24:11] Speaker 01:
You see email correspondence between Mr. Williams and others within the agency where they're trying to help him access it.

[00:24:18] Speaker 01:
They give him advice on it.

[00:24:20] Speaker 01:
And the trail just runs cold.

[00:24:22] Speaker 01:
So for an employee who's facing a PIP, facing notice of unacceptable performance, if you're not able to access the server, if that's really the issue, then there should be a long paper trail that shows all of your efforts made to try to overcome that.

[00:24:37] Speaker 01:
Ultimately, these are all substantial evidence questions for the AJA.

[00:24:40] Speaker 01:
The AJA looked at all this evidence, looked at the testimony, and said, in her view, this is a problem he should have been able to overcome.

[00:24:51] Speaker 01:
And there's no cause to overturn that on appeal.

[00:24:54] Speaker 04:
And then, counsel, how much of the Jones testimony actually needs to be relied on in light of the extensive written record otherwise?

[00:25:03] Speaker 01:
So I think the Jones testimony, I don't know that it needs to be relied on at all.

[00:25:08] Speaker 01:
I think the AJ's decision can be affirmed based on the documents, the performance standards, the fact that he didn't do any work, which he admits.

[00:25:18] Speaker 01:
Mr. Williams admitted in his PIP.

[00:25:23] Speaker 01:
I think that's probably enough.

[00:25:24] Speaker 01:
I think Mr. Jones really was walking through his thinking of how these documents that he relied on relate to the action that he took.

[00:25:35] Speaker 01:
So he's the deciding official.

[00:25:37] Speaker 01:
That's all fair game for the AJ.

[00:25:40] Speaker 01:
But in terms of the AJ's actual analysis of the elements, which is at appendix 11 to 19, I think that the documents and Mr. Williams' own admissions really get over the substantial evidence barrier.

[00:25:54] Speaker 00:
What about, just as an aside, your friend commented that he was on medical leave for all but 21 days of the PIP?

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

[00:26:04] Speaker 01:
A couple of points on that.

[00:26:06] Speaker 01:
The AJ addresses that issue in the context, I think, of a rehabilitation claim.

[00:26:12] Speaker 01:
Appendix 26.

[00:26:27] Speaker 01:
27 and 28.

[00:26:29] Speaker 01:
So the AJ said, first, there's no indication of, he didn't ask for FMLA leave until after the PEP ended, A. B, he didn't give any indication of some sort of disability that the reasonable accommodation could have addressed.

[00:26:50] Speaker 01:
He said he wants, the work was stressful, but there's no,

[00:26:55] Speaker 01:
requirement of a stress-free job.

[00:26:57] Speaker 01:
That's not really a viable disability claim.

[00:27:01] Speaker 01:
And ultimately, the agency could reasonably conclude that extending

[00:27:07] Speaker 01:
the PIP to address this issue wouldn't have helped because, A, his attitude towards the PIP, he didn't think it was legitimate PIP.

[00:27:17] Speaker 01:
We cite some of those emails in our brief where Mr. Williams calls it just sort of a bad faith attempt to punish him, essentially.

[00:27:27] Speaker 01:
Under those circumstances, the idea that extra time would have helped is hard to understand.

[00:27:32] Speaker 01:
Under the circumstances where he's not accessing the server, where he's already had between November and the end of April to address these issues, and he just clearly is not capable of doing the work at that point, and the agency could reasonably conclude that he'd been given enough opportunities to do the work, and he hadn't done it.

[00:27:52] Speaker 01:
If there are no further questions, we ask the court to affirm.

[00:27:55] Speaker 02:
OK, thank you.

[00:27:58] Speaker 02:
It's wrapped, Holly.

[00:27:59] Speaker 02:
You have two minutes.

[00:28:08] Speaker 03:
Thank you, Your Honor.

[00:28:10] Speaker 03:
I believe I reserved three minutes.

[00:28:11] Speaker 03:
I thought I did.

[00:28:12] Speaker 02:
You reserved, but you used it for two minutes.

[00:28:15] Speaker 03:
Oh, I'm so sorry.

[00:28:15] Speaker 03:
I didn't understand that.

[00:28:16] Speaker 03:
Thank you.

[00:28:17] Speaker 03:
I want to highlight the references to Mr. Clark's affidavit just for clarity in the judge's decision.

[00:28:28] Speaker 03:
and the big component at the end.

[00:28:33] Speaker 03:
So at the end of her analysis and under the headings decision on page 8 to 9, she says, referring to Mr. Jones, Mr. Jones concluded, appellant made no effort to start or complete any of the PIP tasks, which Mr. Jones testified that he had no independent knowledge of that fact.

[00:28:53] Speaker 03:
And further, he agreed that the change in the appellant's performance readings

[00:28:57] Speaker 03:
came about because of the agency began requiring him to perform a GS13 database software developer position for which he was selected, as opposed to the technical support help desk duties that he had been provisionally performing since 2005.

[00:29:11] Speaker 03:
And the tab 3 at 59 is a site to the Clark affidavit, which is where that information comes from.

[00:29:18] Speaker 03:
Additionally, as I previously said, she cites to it on page 4

[00:29:26] Speaker 03:
twice and five.

[00:29:28] Speaker 03:
To address some of the points that respondent made, he was denied access through his credentials.

[00:29:36] Speaker 03:
He was unable to access it, and he kept following up with Mr. Clark.

[00:29:40] Speaker 03:
That is his hearing testimony.

[00:29:44] Speaker 03:
The respondent testified that they don't need the Jones's testimony, which

[00:29:49] Speaker 03:
I think gets to the heart of the issue.

[00:29:51] Speaker 03:
Mr. Williams requested a hearing.

[00:29:54] Speaker 03:
He elected to have a hearing so that live hearing testimony could be presented.

[00:29:59] Speaker 03:
He didn't waive that right.

[00:30:01] Speaker 03:
If you take out all of the Jones testimony and the Clark app, there was no testimony and there was no evidence presented other than what was in the record.

[00:30:10] Speaker 03:
None of that is sufficient to sustain the removal.

[00:30:13] Speaker 02:
I think we're out of time.

[00:30:15] Speaker 03:
Your Honor, may I have a moment to conclude?

[00:30:18] Speaker 02:
No, we're done.

[00:30:18] Speaker 02:
Thank you.

[00:30:19] Speaker 02:
Thank you, Your Honor.

[00:30:21] Speaker 03:
Thank you.