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Case number 17-5069, Adrian Carter, Appellant, versus Benjamin S. Carson, Senior, Secretary, Department of Housing and Urban Development.

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Mr. Wagner for the Appellant, Mr. Kolsky for the Appellate.

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morning y'all.

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Charles Wagner on behalf of the appellant.

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I would like to reserve five minutes of my time for rebuttal.

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We would submit that the district court's ruling should be reversed because the district court found that because Miss Carter indicated that the notice of proposed removal indicated that she had

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missed 1,800 hours of leave per se, forced her out of the court, that she had pleaded herself out of court basically by alleging that 1,800 hours of leave had been used.

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The same paragraph that cited the 1,800 hours

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indicated that the majority of those hours were related to her medical disabilities.

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For that reason, we would submit that the district court was required to weigh

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the medical issues in its assessment of the 1800 hours.

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She was frequently absent.

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Yes, she was frequently absent and the record shows that the majority of the time that she was absent pertained to her

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of medical disabilities.

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She stated her medical disabilities at least in two places in her complaint.

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But frequent absence, black letter laws, that disability causing frequent absences from work may render an employee unqualified when attendance is an essential function of the job.

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Attendance is an essential function of the job.

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So the frequent absences would seem not to render her qualified for the job Well, your honor what we would submit is that when you discuss or weight frequent absences in the context of the Rehabilitation Act you must also take into account whether or not

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reasonable accommodation would have addressed that problem.

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Now in paragraph 21 of her complaint, we invite the court's attention to paragraph 21, in paragraph 21 she said that because her ailments impacted on her leave, she requested a reasonable accommodation.

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the law as well as the union agency agreement provided for a modified schedule as a reasonable accommodation.

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And that is what she sought.

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She says, look here, I'd like to come in a little later.

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And her doctor... Can I... I'm sorry.

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I just want to get a fact about this.

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The 1800 hours per week, I mean the work hours that the district court relied on, according to paragraph 44, were since 2010.

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Is that right?

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That's all that's in the complaint about the time that she wasn't present.

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Was 2010 not?

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Well, Your Honor, the 1800 hours span a three-year period.

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Right, beginning, beginning.

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Beginning in 2010.

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Right, and... Okay, I'm sorry.

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I'm not trying to trick you here, I promise.

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And in paragraph 22, it says her authorization to telework was discontinued in 2010, right?

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Yes.

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So those hours in which she missed work were when she was no longer allowed to do her work by teleworking.

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Your Honor, the 1800 hours included time in 2010, but her problems were triggered by the monitoring of her leave by Mr. Andrews.

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And when she began to experience problems on time and attendance, she asked for a reasonable accommodation, as we set forth in paragraph 21.

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And one of the things that she alleged was that because her

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elements impacted on her time and attendance.

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She was disabled within, I'm sorry.

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It's still 1,800 hours over three years, right?

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You don't dispute the total number of absences, correct?

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I didn't quite understand.

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She was absent for 1,800 hours over three years.

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It's about 600 hours a year, probably about a third of time for a normal working job.

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Your Honor, one of the things that we did was we challenged the hours, first of all, and we noted that only 116 hours were AWOL or were not authorized leave.

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So let's talk about that, but you don't challenge that the total is 1,800, as I understand it, right?

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You say that some of them were because of medical conditions, some of them were approved leave and such.

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Well, Your Honor, one of the things that we assert is that much of the leave was approved leave.

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And for that reason, the approved leave could not be used for disciplinary actions.

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If we're talking about 600 hours a year, how many of those are likely to be annual leave or sick leave?

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It seems to me it's got to be a pretty small percentage.

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Well, the problem, Your Honor, is this.

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the law is quite clear that you cannot use approved leave for disciplinary purposes and if you take into account the full eighteen hundred hours which the lower court did, it was using approved leave.

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And I'm inclined to agree with you on that and I'm going to ask your colleague about that but it still seems like whatever fraction of six hundred hours a year is approved

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is a pretty small number.

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My experience in the government is you don't get 200 hours or 300 hours of sick leave or annual leave.

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Well, Your Honor, one of the things that the Federal Circuit has held

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and I don't want me to suggest that somehow they trump the D.C.

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Circuit.

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But the Federal Circuit has held that where there is an issue under the Rehabilitation Act where the leave pertains to a disability, what have you, when you weigh the disciplinary action

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you must also take into account the reason for the leave and that that must be weighed when you say the 1800 hours was somehow bad.

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Now, we would submit that if the district court had said she missed 1800 hours and yes, while part of the 1800 hours pertained to her ailments,

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I still rule that $1,800 were too much.

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If we had that scenario we would submit, then we would have a different case here.

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But we don't have that situation or scenario because the lower court held that $1,800 per se without more.

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Ms.

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Carter pleaded herself out of court.

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Well, it's de novo review, though, on the dismissal, isn't it?

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That is correct, Your Honor.

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But we would also submit that even under de novo review before this court, this court must take into account the fact that the $1,800 pertained to her medical disabilities, which was also, we would note, mentioned in the same paragraph

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uh... that the eighteen hundred hours was set forth so that what we have here is eighteen hundred hours impacted by the medical uh... the medical disability suppose all of the eighteen hundred hours were because of the medical issue wouldn't that still render her unqualified if she has to miss six hundred hours a year even if for a medical reason

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No, Your Honor, it wouldn't.

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If you had a full $1,800, the court was required to weigh the medical disabilities under the Rehabilitation Act.

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You just cannot write out of the

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the conversation, the Rehabilitation Act, and said, well, $1,800, oh, well, that is per se bad, which is what the district court did.

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It says $1,800 in the... But if attendance is part of the job, which it isn't for some jobs and is for other jobs, but if attendance is part of the job and you can't be there,

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because of your, as Judge Katz says, because of your medical issues.

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That still means under the settled law that you're not qualified for the position, correct?

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No, Your Honor.

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Not in this case.

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Because what was sought here was a reasonable accommodation.

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And the question that this court must ask itself is whether or not the reasonable accommodation that she sought would have solved the problem.

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She did not ask to be off any time her ailments bothered her.

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What she asked for and what her doctor suggested was that she be allowed to report late

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so many days a month.

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That was a request that she asked for.

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After the core hours of 730 to 930.

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But I didn't see anything saying how late and how often and whether she would make up for that working other time as happened in one of the cases.

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Well, Your Honor, she asked for a flexible schedule.

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And 730 to 930 were her normal working hours.

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Consequently, as her doctor suggested that she be allowed to report late, so many days, a month, what have you, if they had accommodated that,

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If there was something in the record that says, yes, you can show up beyond 930 on so many days a month, what have you, that would have solved the problem.

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One of the things that we invite the court's attention to is that in the specifications, well, if I might impose on the court's time, one of the things that Ms.

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Carter did was she challenged the hours

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She said that those $1,800 were... Before you get into this, I just want to be sure I understand the position you stated before.

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Your position is that had she been granted a reasonable accommodation, she would not have missed work in the same amount that she did have to miss it because she didn't have one, right?

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That is correct, Your Honor.

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And with respect to Judge Kavanaugh's question to you, which said, if attendance during regular hours were required,

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being absent this much would be a problem, is your position that in order to get the job done, she could have gotten it done with the accommodation, and it was not required by the essence of the job that she be there at that earlier time?

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That is correct, Your Honor.

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One of the things that we would note is that prior to Mr. Andrews serving as her supervisor,

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Ms.

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Carter never had any problems.

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Just to point out the time, you better address the exhaustion question.

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Pardon?

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The exhaustion question for your other... Oh, yes.

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The law court said that Ms.

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Carter did not exhaust her administrative remedies and that she filed a grievance first and then the EEO and that by filing the grievance first,

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it precluded her filing the EEO action.

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But we noted that the grievance pertained to the performance improvement plan as well as her performance appraisal.

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Mr. Andrews denied the grievance because it was not covered by the collective bargaining agreement.

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Can I just ask to clarify something I'm thinking about here on the retaliation claim?

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OK.

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On the retaliation claim, that is a claim of that you were fired, that she was fired in retaliation for her EEO activity, correct?

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Yes.

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OK.

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So when she is terminated, the union immediately elects arbitration, correct?

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Yes.

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Did she ever raise to the arbitrator a retaliation

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Yes, she did, Your Honor.

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I invite the Court's attention to... Where is that?

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Page 181 of Mr. Andrews' testimony.

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In fact, from page 178... Sorry, which tab are you?

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The second transcript.

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It's transcript number 2.

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I invite the Court's attention to... It's at the back of the 10-W.

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178 to 181.

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And specifically, we invite the Court's attention to page 181, paragraphs one through

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I'm sorry.

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When you say 181, are you talking about the pagination of the appendix?

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Yes.

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Okay.

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And one of the, we, at that point.

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What sentence are you talking about?

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Well, from 1 through 14.

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This is the question that begins, so the vast majority of the leave was cited and the notice of proposed removal has been approved.

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No, Your Honor.

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It begins, arbitrator Sharnoff, okay, I mean, assuming that you're going to place that into the record, you did read from it that... We're not finding it.

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Sorry, it's not on the page we thought we were on.

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Do you know which?

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Is it TABW?

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It's transcript number two.

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It's tab transcript number two.

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What tab letter?

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It's the last tab.

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And it's page 181 of the transcript page.

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One of the things that happened was the agency called Mr. Andrews to the stand.

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Now at the start of the proceeding there was

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discussion regarding whether or not the arbitrator could hear anything related to the EEO claims because those claims were pending before the EEOC.

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happened at that point was we recognized that there was a proceeding before the EEOC and we recognized that there might be a problem.

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However, when Mr. Andrews was called as a witness, we argued, starting on 178-81, the more pertinent pages, we said, wait a moment, they have waived any claim

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that those proceedings should be kept separate and apart from the arbitration because Mr. Andrews was called as a witness.

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Council, I'm sorry.

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I'm looking at this and it seems to confirm what the MSPD held and what the EEOC held, which is that you did not challenge the removal as retaliatory because on the middle of this page,

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You are saying retaliation is not the issue in this proceeding.

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Well, Your Honor, specifically we state that we take that your ruling is that retaliation, so that it was raised at that point, and it was later raised that from 178 to 181, we talk about retaliation, and it was our argument then that because... The arbitrator refused to consider any retaliation-based challenge to the removal.

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And you say, we understand your ruling.

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And then you tried to inject retaliation into the MSPB appeal and they said no.

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And you tried to inject it into the EEOC appeal and they said no.

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Yes.

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So you haven't challenged retaliation in the arbitration, and you did challenge retaliation in the EEO complaint, but you expressly limited that challenge to the notice of proposed removal.

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Well, Your Honor, one of the things

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As I indicated, we start at page 178 and go to 181.

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And one of the things that we argued was that the retaliation claim was now before

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the arbitrator because that issue had been waived, the separation of the two proceedings had been waived by the calling of Mr. Andrews.

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And because Mr. Andrews had been called, we said that all the issues before EEOC were now before the arbitrator, and we asked that... Fine, but the issue before the EEOC was a challenge to the proposed removal.

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And while one might think in the abstract that a challenge to a proposed removal encompasses a challenge to the later removal, you explicitly carved that out.

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When you put retaliation into the EEO proceeding, you said you only wanted to challenge the proposal, and you explicitly did not challenge any ensuing removal.

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Well, Your Honor, one of the things that occurs with regard to EEO claims, any claim that is filed will encompass any related claims that follow on the heels of that claim.

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And so, I'm not sure that's right after Amtrak, but in any event, I'm just looking at your own, this is your letter to the EEOC injecting retaliation into the case.

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And you say you want to challenge the notice of proposed removal, and then you say this proposal is a standalone action, is what you want to challenge without including the subsequent action that may result from the proposal.

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The proposed removal, not including the removal.

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That's your formulation.

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Well, Your Honor, one of the things that, we cite the Ninth Circuit case, which, and the related cases would say that anything that follows on the heels of the initial action, if it's related, is automatically covered.

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But more importantly, Your Honor, one of the things that happened is,

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We did raise the, as a result of what happened on pages 178-1, we did raise the matter before the arbitrator.

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We did thereafter raise the matter before the MSPB.

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We then raised the matter before- Can I ask one other clarifying question?

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Yes.

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Because the arbitrator on 179 at the bottom says, it appears that the retaliation as to the proposal is in the EEO channel.

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but then says if you have a retaliation claim that is separate and apart from that and can so demonstrate, you're welcome to go down that path at that point.

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And I thought that I read that to be the arbitrator distinguishing the proposed removal from the removal.

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Well, Your Honor, one of the things that we were arguing at that point was because Mr. Andrews testified at the arbitration, his actions were automatically injected into the case.

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And for that reason, the arbitration was before the arbitrator.

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But more importantly, the exhaustion requirement

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is not jurisdictional for this court.

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What is important is that the matter is raised.

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And we raised it.

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The case was dismissed by EEOC because they said, well, it's a mixed case.

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We're kicking it over.

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But unfortunately, that occurred after the record was closed in the arbitration.

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We would submit that the matter was placed before the arbitrator as a result of the discussion from 1 page 178 to 181.

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Once that was done, we then raised the same matter before the MSPB.

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We say, look here.

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Andrews was called as a witness.

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The matter was injected.

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He should have ruled on it.

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MSPB said, no, he didn't decide it, and so whatever.

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And the same thing happened with EEOC.

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I'm sorry, I'm not understanding the significance of Andrews' testimony.

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Your theory is that Andrews is called as a witness in the arbitration.

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and testifies about the motive for the final removal, and that somehow puts retaliation with regard to the final removal at issue?

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I just want to understand.

[00:24:45] Speaker 01:
Yes.

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What we are asserting, Your Honor, is this, that by virtue of the fact that Mr. Andrews was called in the arbitration, all of his actions

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were then placed in issue.

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And if his actions were retaliatory, then those actions were also automatically placed in issue before the arbitration.

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And we sought to litigate those issues before the arbitrator.

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The arbitrator said no.

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And so we went to the MSPB and then to the EEOC.

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The important thing, Your Honor, is that we did not

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pass up the MSPB and the EEOC as far as appealing that issue.

[00:25:33] Speaker 01:
No, I understand.

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We then appeal to the MSPB and then the EEOC, and for the exhaustion purposes, it is not necessary, we would submit, for the MSPB

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address any issues or for the EEOC to address the issues because after 180 days, the plaintiff automatically has the right to go to the next level.

[00:26:01] Speaker 01:
So that it doesn't matter whether the EEOC or the MSPB actually address the issues.

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The 180 days kicks in and you go to the next level.

[00:26:13] Speaker 01:
The main thing is that Ms.

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Carter did go to those forums and asked those forums to consider it.

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And for that reason, the argument that the district court said, hey, she started down this road on grievance, she was precluded from going anywhere else, it didn't matter because she did go to those forums.

[00:26:41] Speaker 01:
Also, Your Honor, we would submit that at the arbitration, HUD took the position that

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Those issues could not be brought before the arbitrator because they were before EEOC.

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So that what you had was a scenario where they're saying one thing in this forum that is different from what they said in the other forum.

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But by virtue of having gone to those forums.

[00:27:13] Speaker 03:
I think I understand.

[00:27:14] Speaker 03:
Could I just ask you one question about the hostile environment claim?

[00:27:18] Speaker 03:
What is the impermissible basis of hostile environment?

[00:27:24] Speaker 03:
Is it disability or race?

[00:27:26] Speaker 01:
Well, Your Honor, as we indicated, we dismissed the racial discrimination claim.

[00:27:34] Speaker 03:
So presumably it has to be disability.

[00:27:37] Speaker 01:
It's disability and retaliation in a hostile work environment.

[00:27:42] Speaker 03:
So if we affirm the dismissal of your Rehabilitation Act claims,

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What is left of the hostile environment claim?

[00:27:54] Speaker 03:
It would seem that, assuming we affirm on the first point, you haven't adequately pled that the specific things that happened to your client were disability-based, and so what

[00:28:10] Speaker 03:
the record would show is that this supervisor is just being mean and difficult, but that's not a hostile environment unless it's linked to the disability.

[00:28:20] Speaker 03:
So how can you have a hostile environment claim without any disability-based discrimination?

[00:28:28] Speaker 01:
One of the things that remains

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irrespective of how this court treats the rehabilitation claims.

[00:28:43] Speaker 01:
Because Mr. Andrews is a supervisor, as we point out in our reply brief, his actions must be weighed as a supervisor.

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as opposed to a regular employee.

[00:29:02] Speaker 03:
But it's not illegal for him to create a very, very hostile environment unless it's a hostile environment based on race or disability or sex or another prohibited criterion.

[00:29:18] Speaker 01:
Your Honor, whether or not Ms.

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Carter stated proper Rehabilitation Act claim, the fact remains is that Mr. Andrews utilized his position to, as soon as she filed her grievance, the next day he hit her with a reprimand.

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After she asserted that he had improperly denied her leave in January, December, what have you, he extended her leave restrictions.

[00:30:05] Speaker 01:
These are all actions.

[00:30:06] Speaker 03:
So the improper motive is that it's retaliatory?

[00:30:10] Speaker 01:
Yes, his goal, we submit, is that his goal was to remove Ms.

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Carter from her position.

[00:30:21] Speaker 03:
So let's assume then that we affirm on the retaliation claim

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on exhaustion grounds and as a result you can't litigate in court the question whether any of the individual acts was retaliatory.

[00:30:42] Speaker 03:
Same question, how do you show, how do you then show a hostile environment comprised of individual acts that in order to be illegal have to be retaliatory?

[00:30:54] Speaker 01:
Well, Your Honor, one of the things that we have here is that on the 19th of September, she files agreements.

[00:31:01] Speaker 01:
On the 20th of September, he issues the reprimand.

[00:31:05] Speaker 01:
The reprimand is based on acts that occurred three weeks earlier.

[00:31:10] Speaker 01:
She files another retaliation claim in January because of his extension of the leave restriction.

[00:31:22] Speaker 01:
So that, and then finally, we have the EEO claim that this, that after he,

[00:31:36] Speaker 01:
After he went through the process of removing her for annual leave or leave purposes, he decided that he was going to remove her.

[00:31:51] Speaker 01:
But we assert that that action began after he was notified on October the 26th that she had filed an EEO claim.

[00:32:04] Speaker 01:
In the wake of every action that she took against Mr. Andrews, there was a counter action.

[00:32:12] Speaker 02:
Mr. Wagner, we're sort of way over.

[00:32:14] Speaker 02:
You can sum up one sentence if you can.

[00:32:18] Speaker 01:
Well, Your Honor, we would submit that the trial court, by stating that 1,800 hours per se

[00:32:32] Speaker 01:
basically kicked Ms.

[00:32:36] Speaker 01:
Carter out of court.

[00:32:38] Speaker 01:
The failure of the trial court to weigh

[00:32:43] Speaker 01:
her disabilities in making that decision, we would submit was a reversible error.

[00:32:48] Speaker 01:
And as far as the exhaustion, we would submit that by having gone to all, dotted all the I's and crossed all the T's by going to the various agencies, what have you, irrespective of how they ruled, what have you, she did everything that was required of her

[00:33:08] Speaker 01:
to exhaust her administrative remedies.

[00:33:11] Speaker 01:
All right.

[00:33:11] Speaker 01:
Thank you for your help.

[00:33:13] Speaker 01:
We'll hear from the government.

[00:33:21] Speaker 04:
Good morning.

[00:33:21] Speaker 04:
Josh Kolski on behalf of the Appellate.

[00:33:25] Speaker 04:
In this case, the agency identified specific pleading deficiencies in Ms.

[00:33:30] Speaker 04:
Carter's admission.

[00:33:30] Speaker 02:
Can you begin with the 1800 hours point?

[00:33:33] Speaker 04:
Yes.

[00:33:34] Speaker 02:
Is the government going to stand on that argument?

[00:33:37] Speaker 04:
Um, we do believe that that establishes that she was not qualified to perform the essential functions of her job.

[00:33:42] Speaker 02:
However, why do you say that?

[00:33:45] Speaker 02:
Because the case of ours, do you rely on for that proposition?

[00:33:51] Speaker 04:
Well, it would be, um, doac V Johnson.

[00:33:56] Speaker 02:
Uh, I thought it was car was the case you were relying on.

[00:33:59] Speaker 02:
Is that wrong?

[00:34:00] Speaker 04:
Well, both of those, I mean, our argument is our primary argument, your honor.

[00:34:04] Speaker 04:
is that the complaint doesn't allege facts to show that she was qualified.

[00:34:10] Speaker 04:
And the court doesn't even have to get into it.

[00:34:12] Speaker 02:
Yeah, I know the court doesn't have to get into it, but I want to be sure that the government, what the government's position is.

[00:34:18] Speaker 02:
Do you think that when you plead that you were, that she was, had missed 1,800 hours, that that per se means that she's pledged herself out of court?

[00:34:35] Speaker 04:
where there is no allegation that attendance was not an essential function of her job.

[00:34:41] Speaker 02:
Well, who has to make that allegation?

[00:34:43] Speaker 02:
So she says in exactly the same paragraph, or not in the same paragraph, she says that the removal decision noted that Ms.

[00:34:51] Speaker 02:
Carter had missed 1,800 hours since 2010.

[00:34:54] Speaker 02:
But she also alleges that her authorization to telework was discontinued in 2010.

[00:35:01] Speaker 02:
And she also says that she asked as an accommodation telework.

[00:35:05] Speaker 02:
So all we have on the face of the complaint is that she was not able to do the job after her accommodation had been eliminated.

[00:35:17] Speaker 02:
And she alleges with an accommodation, she would have been able to do her job.

[00:35:23] Speaker 02:
which are at issue here is, is attendance really essential or not?

[00:35:27] Speaker 02:
None of that's in the complaint.

[00:35:28] Speaker 02:
Either way.

[00:35:30] Speaker 04:
That's correct.

[00:35:30] Speaker 04:
And it's our position that she would need to allege something about the nature of her job responsibilities and an allegation that she could perform those job responsibilities.

[00:35:40] Speaker 02:
She alleged that with an accommodation she could perform her job.

[00:35:44] Speaker 02:
Why isn't that enough at the stage of the comparison?

[00:35:46] Speaker 04:
Your Honor, I don't believe she did allege that.

[00:35:48] Speaker 04:
She alleged that she could maintain an acceptable work schedule.

[00:35:53] Speaker 04:
That's paragraph 50.

[00:35:56] Speaker 04:
But that's not the same as performing one's essential job functions.

[00:36:01] Speaker 04:
And I think that is a distinction in the Doak V. Johnson case, where the plaintiff requested delayed start time, and the court held that

[00:36:11] Speaker 04:
Even with that accommodation, the employee wouldn't be able to perform the essential functions of her job, which required attendance in the office during ordinary business hours.

[00:36:22] Speaker 02:
I understand.

[00:36:23] Speaker 02:
Paragraph 50 says that would enable her to maintain an acceptable work schedule.

[00:36:29] Speaker 02:
I know you're interpreting that as not being enough, but this is only a complaint here.

[00:36:34] Speaker 02:
This is not summary judgment even.

[00:36:36] Speaker 02:
You did ask for summary judgment.

[00:36:37] Speaker 02:
The judge didn't grant you that.

[00:36:39] Speaker 04:
Well, we asked for summary judgment in the alternative on the exhaustion issue.

[00:36:43] Speaker 02:
Do you agree that telework, which enables you to do your job, would be an accommodation?

[00:36:54] Speaker 02:
I'm not saying in this case, but as a general matter, even if you could not attend work,

[00:36:59] Speaker 02:
but you could do your job with telework, that that would be sufficient?

[00:37:04] Speaker 04:
I just want to make sure I understand, Your Honor, correctly.

[00:37:06] Speaker 04:
If telework enabled a person to perform the essential functions of their job, that could be a reasonable combination.

[00:37:13] Speaker 02:
And so the mere fact that someone wasn't able to do their job without telework doesn't mean that they weren't able to do the essential functions of the job.

[00:37:23] Speaker 03:
That is correct.

[00:37:24] Speaker 03:
By telework, you mean working from home?

[00:37:27] Speaker 03:
Right and you think it it could be a reasonable accommodation regardless of the number of hours It will it would depend on the facts it would depend on the job responsibilities all this depends on the job, right?

[00:37:40] Speaker 04:
That's correct.

[00:37:41] Speaker 02:
And so if you judge Garland's questions, I think depend on the nature of the job Which all seem to me to be facts that you normally don't dismiss on the basis of the complaint alone.

[00:37:52] Speaker 04:
Well, I

[00:37:52] Speaker 04:
But there still needs to be facts in the complaint to plausibly suggest that she could perform the essential functions of her job.

[00:37:59] Speaker 04:
And there's no indication of what was she doing.

[00:38:02] Speaker 04:
Did she need to actually be in the office during core business hours?

[00:38:07] Speaker 04:
And, in fact, the notice of proposed removal, which is referenced in the complaint, gets at this idea.

[00:38:13] Speaker 04:
The supervisor indicated that the nature of her work was time-sensitive and she needed to be in the office.

[00:38:22] Speaker 04:
Now, that's not alleged in the complaint.

[00:38:26] Speaker 04:
My understanding of this case, not based on the facts in the complaint, but is that it was necessary for her to be in the office during ordinary business hours.

[00:38:35] Speaker 04:
But now we're beyond the complaint.

[00:38:37] Speaker 04:
I'm sorry?

[00:38:37] Speaker 02:
But now we're beyond the complaint.

[00:38:39] Speaker 04:
Right.

[00:38:39] Speaker 04:
And my position is that a plaintiff shouldn't be able to omit facts pertaining to an element of their claim in order to essentially hide a critical deficiency.

[00:38:52] Speaker 04:
that is only going to be revealed during discovery.

[00:38:54] Speaker 05:
If the complaint said, without anything more, this job does not require physical presence at the workplace but can be performed by telework, would that be enough to survive a motion to dismiss?

[00:39:11] Speaker 04:
I think that there would need to be some factual support for that, some description of what her duties were so that the court could infer.

[00:39:22] Speaker 04:
Isn't that where summary judgment usually kicks in, not a motion to dismiss?

[00:39:28] Speaker 04:
Well, I think under Twombly and Iqbal, there doesn't need to be a factual basis.

[00:39:33] Speaker 04:
It's difficult to say in the abstract exactly how much factual support is necessary.

[00:39:40] Speaker 04:
But even the allegation that you have... Yeah, your point is that there's no allegation like that in this complaint.

[00:39:48] Speaker 05:
That's correct.

[00:39:48] Speaker 05:
I was just exploring what would be necessary under that theory.

[00:39:53] Speaker 04:
And our position is that there needs to be some factual support for the court to draw the conclusion that she could perform the essential functions of her job.

[00:40:02] Speaker 03:
Could I take you back to the 1800 hours?

[00:40:04] Speaker 03:
Yes.

[00:40:05] Speaker 03:
That does strike me as a very large number.

[00:40:09] Speaker 03:
But I am troubled by what I understand to be the government's position that an employee can be deemed disqualified by taking even leave that is approved in some sense, annual leave, sick leave, whatever it is.

[00:40:29] Speaker 03:
So is that your position?

[00:40:33] Speaker 04:
I believe there is support for the idea that a person can be removed even if the leave is approved.

[00:40:42] Speaker 03:
I would think if the governing statutes or regulations say, look, you come work for us, you're entitled to X number of hours of annual leave and Y number of hours of sick leave or whatever.

[00:40:54] Speaker 03:
That's an authoritative statement that that amount of absenteeism doesn't count against an employee.

[00:41:02] Speaker 03:
It's part of the employee's rights as part of the employment arrangement.

[00:41:07] Speaker 04:
Well, I think a lot of the leave here was leave without pay.

[00:41:10] Speaker 03:
Right.

[00:41:11] Speaker 03:
So it seems to me the categories that really shouldn't count against an employee are

[00:41:20] Speaker 03:
annual leave and sick leave.

[00:41:23] Speaker 03:
On the other end of the spectrum, the categories that clearly should are AWOL.

[00:41:28] Speaker 03:
And then leave without pay seems to me in the middle, and I'm not sure what it is, so could you just elaborate on what it is and why you think it can count against an employee in the way that you suggest?

[00:41:43] Speaker 04:
The record isn't entirely clear on the nature of the different types of leave that Ms.

[00:41:50] Speaker 04:
Carter used here.

[00:41:52] Speaker 04:
My understanding is that she was absent frequently.

[00:41:55] Speaker 04:
In some cases, the agency exercises discretion to allow her to take leave without pay rather than to designate her as AWOL.

[00:42:04] Speaker 03:
I assume that just means she's used up her annual leave, she's used up her sick leave, she has a medical issue, she doesn't come in, and the agency says, okay, but we're not going to pay you for that time.

[00:42:19] Speaker 05:
That's my understanding as well.

[00:42:21] Speaker 05:
Okay.

[00:42:21] Speaker 05:
How much annual and sick leave did she have during this period?

[00:42:28] Speaker 04:
I'm not sure.

[00:42:29] Speaker 04:
The Notice of Proposed Removal discusses

[00:42:35] Speaker 04:
It breaks down her leave in terms of annual leave.

[00:42:38] Speaker 04:
It notes that in 2011, there was 205 hours of annual leave, 105 hours of sick leave, 377 hours of leave without pay.

[00:42:48] Speaker 04:
I'm not sure what her sort of annual allocation of annual leave and sick leave was.

[00:42:55] Speaker 03:
But I think the idea is that... I would think it's a pretty small number relative to 1800 hours, but this does tend to

[00:43:05] Speaker 03:
buttress the chief's point that we can only do so much on a motion to dismiss.

[00:43:11] Speaker 04:
Right.

[00:43:11] Speaker 04:
And I think the idea is that to the extent that the agency was exercising its discretion to show some leniency and not designate these hours as AWOL, that doesn't mean that Ms.

[00:43:26] Speaker 04:
Carter was performing her essential job functions.

[00:43:30] Speaker 04:
And it doesn't mean that the agency had to continue being lenient in the future.

[00:43:35] Speaker 04:
The absences demonstrated an inability to perform our job functions.

[00:43:43] Speaker 02:
Can you talk about the exhaustion?

[00:43:44] Speaker 02:
Yes, sir.

[00:43:46] Speaker 02:
I must say I'm a little confused by it.

[00:43:48] Speaker 02:
It is.

[00:43:49] Speaker 02:
There are a lot of... Maybe exhausted.

[00:43:50] Speaker 02:
I'm sorry?

[00:43:51] Speaker 04:
Maybe I'm a little exhausted by it.

[00:43:53] Speaker 04:
There are a lot of moving parts with the exhaustion issue.

[00:43:57] Speaker 02:
So the only issues that matter with respect to exhaustion are hostile work environment and retaliation.

[00:44:03] Speaker 02:
Yes.

[00:44:03] Speaker 02:
Okay, so can you tell me why she didn't exhaust on the retaliation argument?

[00:44:11] Speaker 04:
The retaliation challenges her removal.

[00:44:17] Speaker 04:
When she received the notice of proposed removal, she filed an EO claim on that.

[00:44:23] Speaker 04:
And she specifically carved out the later action that might result from that.

[00:44:29] Speaker 02:
That's – that's in that grievance that was just being read before.

[00:44:32] Speaker 04:
It's not in the – does the EEO complaint say that I'm not going to include the – Yeah, it's – the EEO complaint is attached as an addendum to the government's brief and – What's the date of it?

[00:44:43] Speaker 02:
Can you tell me?

[00:44:48] Speaker 03:
that's no July 19 this is it's dated November 21st 2011 but the point at which she injects retaliation into the EEO complaint

[00:45:05] Speaker 03:
based on the proposed removal, as I understand it, is the July 19, 2012 document.

[00:45:13] Speaker 04:
Yes, yes.

[00:45:15] Speaker 02:
She hadn't been removed.

[00:45:16] Speaker 02:
The notice hadn't even been issued.

[00:45:18] Speaker 04:
I'm sorry.

[00:45:19] Speaker 04:
Her EEO complaint was the November document.

[00:45:22] Speaker 04:
The amendment to the EEO complaint came later.

[00:45:25] Speaker 02:
Which is the thing that you thought that carved out?

[00:45:31] Speaker 04:
That is the appendix, page 279.

[00:45:35] Speaker 04:
That is July 19, 2012.

[00:45:37] Speaker 04:
And it's at the end of the first paragraph.

[00:45:42] Speaker 04:
She writes, it is my understanding that I can submit this proposal as a standalone action of reprisal without including the subsequent action that may result from the proposal.

[00:45:54] Speaker 04:
And in fact,

[00:45:56] Speaker 04:
when the actual removal occurred, she went to the negotiated grievance procedure.

[00:46:04] Speaker 04:
She invoked arbitration as to the removal and did not raise a retaliation claim.

[00:46:12] Speaker 02:
Sorry, I'm going to have to make you keep toggling back and forth.

[00:46:14] Speaker 02:
Tell me again in the appendix where it is.

[00:46:17] Speaker 04:
The appendix, page 279.

[00:46:25] Speaker 04:
And it's at the end of the first paragraph there.

[00:46:33] Speaker 04:
Yeah.

[00:46:35] Speaker 04:
So she specifically carved out the... At least for that moment.

[00:46:40] Speaker 02:
That's correct.

[00:46:40] Speaker 02:
She didn't necessarily decide she couldn't, just she can.

[00:46:43] Speaker 04:
Right, but she never went back and amended the EEO complaint to include the actual removal.

[00:46:51] Speaker 02:
What happened October 2nd of 2012?

[00:47:00] Speaker 04:
Is that the notice to invoke arbitration?

[00:47:06] Speaker 05:
That was September 24th, the arbitration invocation.

[00:47:24] Speaker 02:
This was sort of an updating of the complaint on October 2nd.

[00:47:29] Speaker 02:
I don't have it.

[00:47:31] Speaker 02:
It's an investigative affidavit.

[00:47:33] Speaker 02:
It's a very good question of how I find it now in the appendix, but it's dated October 2nd.

[00:47:42] Speaker 02:
It's 2012.

[00:47:49] Speaker 02:
I don't have that one.

[00:48:11] Speaker 04:
All right, so this is an investigative affidavit, and it repeatedly asks about the proposed removal, paragraphs 13, 14, 15, 16, 17.

[00:48:23] Speaker 04:
So this just reflects that the agency was investigating the EEO complaint about the proposed removal.

[00:48:31] Speaker 04:
but it is undisputed that when she was removed, she invoked arbitration, proceeded through arbitration, appealed that to the MSPD, appealed that to the EEOC, but never raised a retaliation claim in that process.

[00:48:48] Speaker 04:
And I know Mr. Wagner discussed some pages from a transcript this morning.

[00:48:53] Speaker 04:
I don't believe those were cited in the briefing, so I haven't focused on them, but I did notice that

[00:49:00] Speaker 04:
page 177 seems to indicate that retaliation was not raised.

[00:49:05] Speaker 04:
It says, Mr. Wagner, that is the proposal to remove.

[00:49:11] Speaker 04:
Now the actual removal is not.

[00:49:13] Speaker 04:
We're not alleging or asserting retaliation in connection with Mr. Boyd's decision.

[00:49:18] Speaker 04:
retaliation actually is against Mr. Andrews.

[00:49:21] Speaker 04:
Mr. Boyd's actions are separate.

[00:49:23] Speaker 04:
We have not asserted retaliation as an issue before this body.

[00:49:26] Speaker 04:
And just to clarify, Mr. Boyd was the deciding official on the removal.

[00:49:31] Speaker 04:
Mr. Andrews was the proposing official.

[00:49:33] Speaker 04:
So what seems to be indicated here is that retaliation was raised as to Mr. Andrews, as to the notice of proposed removal.

[00:49:42] Speaker 04:
That was in the EEO process.

[00:49:45] Speaker 04:
Mr.

[00:49:46] Speaker 04:
As to Mr. Boyd's decision, the removal, which was challenged through arbitration, retaliation was not raised.

[00:49:55] Speaker 04:
And therefore, that claim was not exhausted.

[00:49:59] Speaker 02:
What about the other?

[00:50:00] Speaker 02:
She made a retaliation claim about other things as well.

[00:50:04] Speaker 02:
You're saying those were all done through the grievance?

[00:50:08] Speaker 02:
She made a retaliation claim about her September 20th

[00:50:15] Speaker 02:
EEOC complaint alleges disability discrimination, hostile work environment, and retaliation for whatever happened before that.

[00:50:25] Speaker 02:
So what about that?

[00:50:26] Speaker 02:
Is that exhausting?

[00:50:28] Speaker 04:
Well, the retaliation claim that's in federal court is based on the removal.

[00:50:34] Speaker 02:
Only on removal?

[00:50:36] Speaker 04:
That's my understanding.

[00:50:37] Speaker 05:
That's count three, right?

[00:50:38] Speaker 04:
That's only the removal.

[00:50:39] Speaker 04:
Yes.

[00:50:39] Speaker 04:
I think.

[00:50:40] Speaker 04:
That's right.

[00:50:41] Speaker 04:
It doesn't identify any other actions that allegedly were retaliatory.

[00:50:47] Speaker 04:
So our position is that she elected the grievance procedure as her remedy for the removal, didn't raise a retaliation claim, and therefore that claim is unexhausted.

[00:51:06] Speaker 02:
The removal, what happened after she invoked it with respect to removal in the grievance?

[00:51:15] Speaker 04:
The process proceeded to arbitration.

[00:51:16] Speaker 04:
There was a multi-day arbitration.

[00:51:19] Speaker 04:
The arbitrator ruled against her on various issues relating to the removal.

[00:51:23] Speaker 04:
She appealed that to the MSPB.

[00:51:26] Speaker 04:
And at that point,

[00:51:27] Speaker 04:
She tried to raise the retaliation claim, and the MSPB said, you didn't raise that in the arbitration.

[00:51:33] Speaker 04:
We're not going to consider it.

[00:51:34] Speaker 02:
But let me just back up.

[00:51:37] Speaker 02:
In what way did she not exhaust the grievance process?

[00:51:44] Speaker 04:
She did exhaust the grievance process as to the removal.

[00:51:48] Speaker 04:
So there were sort of two grievance processes.

[00:51:52] Speaker 04:
There was the initial grievance process in September of 2011, and that relates to the hostile work environment claim.

[00:52:00] Speaker 04:
There was another grievance process relating to the removal.

[00:52:04] Speaker 02:
Yeah, I got to do one at a time.

[00:52:06] Speaker 02:
Right.

[00:52:08] Speaker 02:
So with respect to the removal, she invoked arbitration with respect to the removal.

[00:52:16] Speaker 02:
The arbitrator

[00:52:18] Speaker 02:
what, just denied it?

[00:52:19] Speaker 04:
That's correct.

[00:52:21] Speaker 02:
And then?

[00:52:21] Speaker 04:
And then she appealed to the MSPB and then appealed to the EEOC.

[00:52:26] Speaker 04:
So we're not contending that she didn't exhaust whatever claims she had raised in that process.

[00:52:32] Speaker 04:
The removal process?

[00:52:33] Speaker 04:
Right.

[00:52:34] Speaker 02:
And the problem is that it didn't specifically say reprisal.

[00:52:38] Speaker 02:
It just said, I'm complaining about removal.

[00:52:41] Speaker 04:
Right.

[00:52:41] Speaker 04:
Well, there were particular issues that were raised in the arbitration, and one of them was not

[00:52:48] Speaker 04:
retaliation, and in fact, as the transcript seems to indicate, she specifically said she wasn't.

[00:52:53] Speaker 02:
And then when she applied to the MSPB, she did raise the reprisal issue?

[00:52:57] Speaker 02:
Yes, she attempted to.

[00:52:59] Speaker 02:
And they dismissed it for the reason that she hadn't raised its

[00:53:04] Speaker 02:
raised it before the arbitrator.

[00:53:06] Speaker 02:
So that's a procedural ground for dismissing it?

[00:53:10] Speaker 04:
That's correct.

[00:53:11] Speaker 02:
So why isn't the Supreme Court's Kleckner case, which says that when the MSPB rejects either on procedural or merits grounds, that's a final decision?

[00:53:22] Speaker 02:
And then you can sue in federal court.

[00:53:27] Speaker 02:
Why isn't this exhausting enough?

[00:53:28] Speaker 02:
That is,

[00:53:31] Speaker 02:
Maybe she made a mistake, maybe she erred, but she kept going, and she went to the highest place she could go in the administration, and she lost.

[00:53:43] Speaker 04:
Well, I mean, she needed to include the claim.

[00:53:46] Speaker 04:
Well, she did include it in the MSPB.

[00:53:50] Speaker 04:
And at that point, it was too late.

[00:53:52] Speaker 02:
At that point, it was rejected.

[00:53:53] Speaker 02:
But is there a case or anything that says that that – in other words, where you do finally raise the issue with the MSPB and you erred somewhere along the way, that that doesn't count as exhaustion?

[00:54:08] Speaker 02:
I understand why the MSPB might be completely right, but why isn't it enough for exhaustion?

[00:54:14] Speaker 02:
Is there a case that says that?

[00:54:16] Speaker 04:
I don't know of a particular case.

[00:54:20] Speaker 04:
That issue was not raised by the appellant.

[00:54:24] Speaker 02:
Well, he is raising that.

[00:54:25] Speaker 02:
That's where he says, look, we went everywhere we could.

[00:54:28] Speaker 02:
We applied to the MSPB.

[00:54:29] Speaker 02:
We applied to this.

[00:54:30] Speaker 02:
We applied to that.

[00:54:31] Speaker 02:
The point of exhaustion is to give notice.

[00:54:34] Speaker 02:
You have plenty of notice, not you personally.

[00:54:36] Speaker 02:
The agency, they were involved in all these proceedings, so they knew what was going on.

[00:54:40] Speaker 02:
Purpose of exhaustion is if the agency wants to fix something in advance of going to court, they can.

[00:54:45] Speaker 02:
They had several fronts on which they could have done it.

[00:54:50] Speaker 04:
Well, I think to allow employees to exhaust that way would allow them to bypass the process and raise issues that had not been fleshed out

[00:55:07] Speaker 04:
early on in the process.

[00:55:08] Speaker 02:
It's clear they could lose on the merits, and it would still be exhausting, right?

[00:55:12] Speaker 02:
It doesn't matter.

[00:55:13] Speaker 02:
MSPB can't bind the court in a case brought under the statute, right?

[00:55:18] Speaker 04:
I agree.

[00:55:19] Speaker 02:
All right.

[00:55:19] Speaker 02:
So what's the difference?

[00:55:22] Speaker 02:
That is, they lose on the merits, they lose on the merits.

[00:55:25] Speaker 02:
If they lose because they screwed up the procedure, they lose on that.

[00:55:30] Speaker 02:
They put forward their arguments.

[00:55:33] Speaker 02:
The government had an opportunity to fix things if it wanted to, which obviously didn't want to because it thought it was right on the merits.

[00:55:44] Speaker 04:
I think the arbitration is a process that's a lot more amenable to figuring out the facts much more so than before the MSPB.

[00:56:00] Speaker 03:
Is the MSPB proceeding an evidentiary proceeding or an appellate proceeding on the arbitration record?

[00:56:09] Speaker 04:
My understanding, it's more like an appellate proceeding.

[00:56:12] Speaker 04:
The arbitration proceeding, there's witnesses, there's evidence submitted.

[00:56:17] Speaker 03:
And when the MSPB issued its ruling, that because she could have but did not raise her retaliation claim during the arbitration, she's therefore precluded from asserting it before the board.

[00:56:33] Speaker 03:
It cites 5 CSR, sorry, CFR 1201, 155C, and a bunch of cases.

[00:56:42] Speaker 03:
What did those, I didn't go back and check them because I didn't understand your opponent to be making this argument, but what does that authority say?

[00:56:51] Speaker 04:
I don't, I'm not sure what that authority says, Your Honor, I'd have to.

[00:56:55] Speaker 04:
Okay.

[00:57:02] Speaker 02:
One minute.

[00:57:38] Speaker 02:
Could you look with me on tab K, page 84, this is the EEOC order of dismissal?

[00:57:48] Speaker 02:
Yes.

[00:57:50] Speaker 02:
And sort of second, the last full sentence on the page, the plaintiff must be provided a written notification of her right to file either a mixed case complaint or a mixed case appeal regarding the harassment slash removal claims.

[00:58:03] Speaker 02:
Does that sound like the EEOC thought that she had?

[00:58:11] Speaker 02:
It was that she made a mixed case on the removal claims?

[00:58:16] Speaker 04:
I think the reference to removal there is referring to the proposed removal, which she had raised in the EEO process.

[00:58:25] Speaker 03:
Can I ask you about that dismissal?

[00:58:26] Speaker 03:
I don't understand it.

[00:58:29] Speaker 03:
As I understand the way the scheme works, whatever was in the EEO track

[00:58:40] Speaker 03:
should have gone forward as against the later arbitration because the EEO complaint was filed before the arbitration was filed.

[00:58:54] Speaker 03:
So why is the EEOC dismissing that proceeding in deference to a later filed arbitration?

[00:59:05] Speaker 04:
It's not clear.

[00:59:06] Speaker 04:
The EEOC, as you'll see, the order of dismissal is very short.

[00:59:10] Speaker 03:
I'm not sure it matters, but I just didn't understand what they were doing in this.

[00:59:15] Speaker 04:
There isn't much of an explanation here.

[00:59:19] Speaker 04:
My understanding is that they were aware that the other proceeding was going on and seemed to think that that should

[00:59:29] Speaker 04:
play itself out and that there shouldn't be the two proceedings occurring simultaneously, but there certainly isn't a lot of explanation in the order of dismissal.

[00:59:40] Speaker 02:
Can you help me with the hostile work environment?

[00:59:42] Speaker 02:
Yes.

[00:59:43] Speaker 02:
That's not exhaustive.

[00:59:46] Speaker 04:
Ms.

[00:59:46] Speaker 04:
Carter filed a grievance on September 19, 2011 addressing various issues relating to performance appraisals, performance standards.

[00:59:58] Speaker 04:
The grievance was denied as to two of those actions and one of them The supervisor agreed to meet with miss Carter to discuss her performance standards She didn't further pursue the grievance past step one Grievance now or the the grievance Where was the hostile work environment raised

[01:00:25] Speaker 04:
So she did not raise hostile work environment there.

[01:00:27] Speaker 04:
In the grievance.

[01:00:28] Speaker 04:
In the grievance.

[01:00:28] Speaker 02:
But she did on September 20th with the EEO complaint.

[01:00:31] Speaker 04:
The next day, September 20th, she went to an EEO counselor, started that process.

[01:00:37] Speaker 04:
And then in November, she submitted a formal EEO complaint, which did raise the hostile work environment claim based on the same issues.

[01:00:46] Speaker 04:
She also included additional issues.

[01:00:47] Speaker 02:
Based on the same issues as?

[01:00:49] Speaker 04:
As the grievance.

[01:00:50] Speaker 02:
The grievance was just about the PIP and the midyear evaluation.

[01:00:55] Speaker 04:
It was about the PIP, the mid-year evaluation, and her supervisor's failure to discuss her performance standards with her.

[01:01:02] Speaker 04:
Those were the three issues.

[01:01:03] Speaker 04:
Those same issues were addressed in the EEO complaint along with additional issues as well.

[01:01:11] Speaker 04:
So our position is that as with the removal, she elected, here she elected the negotiated grievance procedure to address these actions.

[01:01:21] Speaker 04:
Even though she didn't raise hostile work environment at all.

[01:01:24] Speaker 04:
That's correct.

[01:01:25] Speaker 04:
It's not a question of raising a particular claim.

[01:01:29] Speaker 04:
You elect a remedy for a matter.

[01:01:32] Speaker 04:
And then once you've elected that remedy, you have to raise whatever claims you believe apply.

[01:01:38] Speaker 04:
And here, she did not raise a hostile work environment claim in her elected remedy in the negotiated grievance procedure.

[01:01:49] Speaker 04:
And it's clearly the same matter, the same actions that occurred at the same time,

[01:01:54] Speaker 04:
She filed the grievance on September 19th, started the EEO process the next day.

[01:01:58] Speaker 04:
She was complaining about the same issues.

[01:02:03] Speaker 04:
So she didn't raise the hostile work environment claim in the negotiated grievance procedure.

[01:02:10] Speaker 04:
She also didn't pursue it past step one to exhaust that procedure.

[01:02:14] Speaker 02:
Which procedure are you talking about?

[01:02:17] Speaker 04:
Negotiated grievance procedure.

[01:02:19] Speaker 04:
to exhaust through that process, she would have had to appeal to step two, then to step three, and then to arbitration.

[01:02:28] Speaker 02:
What about the notice of proposed removal and the removal decision?

[01:02:35] Speaker 04:
Those were addressed, well, the notice of proposed removal was included in the EEO complaint, and the removal was addressed through the arbitration.

[01:02:48] Speaker 04:
So what about the notice?

[01:02:52] Speaker 04:
That was raised in the EEO process.

[01:02:54] Speaker 04:
And is that exhausted?

[01:02:58] Speaker 04:
I'm not arguing that it wasn't exhausted, but she hasn't raised that issue in her, in federal court.

[01:03:05] Speaker 02:
No, but that, I'm talking about as part of the hostile work environment.

[01:03:10] Speaker 02:
Because on July 19th, it looked like she at least updated

[01:03:16] Speaker 02:
the notice, the complaint to include the notice of proposed removal.

[01:03:23] Speaker 02:
Is that wrong?

[01:03:26] Speaker 04:
No, that's, that is correct.

[01:03:28] Speaker 04:
Um, I think that, but.

[01:03:31] Speaker 02:
So, so in, in Morgan, which is the Amtrak case that, uh, Judge Katzis was talking about, uh, hostile work environment doesn't, uh, even again, if that case applied here,

[01:03:45] Speaker 02:
It's different than other cases, because it's other issues, because it's a continuing series of violations.

[01:03:50] Speaker 02:
And as long as one of them is within the time, you can bring the whole thing, anything that happened during the time.

[01:03:56] Speaker 02:
So why isn't the notice of proposed, I keep thinking notice of proposed rulemaking.

[01:04:05] Speaker 02:
I apologize, that's for the next case probably.

[01:04:07] Speaker 02:
But for this case, the notice of proposed removal, why isn't that

[01:04:14] Speaker 02:
Which then relates back to the complaint.

[01:04:17] Speaker 02:
Why isn't that exhausted with respect to the hostile work environment?

[01:04:21] Speaker 04:
Well, it's not clear that she is actually including that in her hostile work environment claim.

[01:04:27] Speaker 03:
She refers to the... Her hostile environment theory is just take all of the acts and lump them together.

[01:04:35] Speaker 03:
Everything from the pit that was the subject of the initial grievance to the ultimate removal, which is the subject of the arbitration, right?

[01:04:45] Speaker 04:
That's correct.

[01:04:46] Speaker 04:
All of these actions are

[01:04:49] Speaker 04:
treated together, and the first election she made with regard to certain of those actions was the negotiated grievance procedure.

[01:04:58] Speaker 05:
But if Chief Judge Garland's point was that if at least one of those actions was exhausted, does that mean that her hostile work environment claim was exhausted?

[01:05:14] Speaker 05:
And therefore, you have to address the merits of it.

[01:05:17] Speaker 05:
And you have an alternative argument on the merits of it, I believe.

[01:05:21] Speaker 04:
We do.

[01:05:21] Speaker 05:
It says that it does not state a hostile work environment claim, because it's nothing like your typical hostile work environment claim.

[01:05:28] Speaker 04:
That's correct.

[01:05:29] Speaker 05:
What about the idea that if one of, say, there are five things and one of them is exhausted, and that's part of the hostile work environment, which I understood to be what was being got at, getting at?

[01:05:44] Speaker 04:
I'm not sure of the answer to that, Your Honor.

[01:05:46] Speaker 04:
I would have to go back and look at that.

[01:05:50] Speaker 03:
It seems like a stretch on exhaustion to say that the initial grievance, which focuses on all of the early discrete acts, covers everything.

[01:06:05] Speaker 03:
But I think that's because

[01:06:10] Speaker 03:
this feels like a discrete acts case rather than a hostile environment case.

[01:06:15] Speaker 03:
Normally we would treat, if you're challenging, you can challenge a removal and you can challenge a reprimand and you can maybe challenge a performance evaluation.

[01:06:25] Speaker 03:
Those are all what Morgan would characterize as discrete acts.

[01:06:31] Speaker 03:
It seems odd to me that you could stitch together a bunch of discrete acts into a hostile environment claim

[01:06:40] Speaker 04:
I agree and that gets to our argument in the alternative that the acts that are alleged as alleged hostile acts.

[01:06:50] Speaker 04:
are not, there is no cohesiveness to them.

[01:06:54] Speaker 04:
It is a collection of discrete acts, none of which are inherently hostile.

[01:07:01] Speaker 04:
These are ordinary workplace incidents.

[01:07:04] Speaker 04:
People get put on performance improvement plans.

[01:07:08] Speaker 05:
People are... Is your argument, I guess the EEOC says that hostile conduct

[01:07:12] Speaker 05:
says it's not limited to this, but offensive jokes, slurs, epithets, physical assaults, intimidation, ridicule, mockery, insults, et cetera, things like that.

[01:07:20] Speaker 05:
That's not what's alleged here.

[01:07:21] Speaker 04:
That's right.

[01:07:22] Speaker 04:
And I think in a more traditional sort of classic hostile work environment case where there's that sort of conduct, a complaint, you know,

[01:07:32] Speaker 04:
alleging those sorts of facts wouldn't have to go into maybe more detail because it's sort of inherently obvious why those actions are hostile.

[01:07:42] Speaker 04:
But here when you're talking about

[01:07:43] Speaker 04:
performance improvement plans, low performance appraisals.

[01:07:47] Speaker 04:
Our position is there needs to be some factual basis for concluding that those were severe, that they were hostile, when there's nothing that on their face would suggest as much.

[01:07:59] Speaker 04:
And there's no factual allegations to that effect here.

[01:08:03] Speaker 04:
There's nothing suggesting that these were particularly severe or pervasive.

[01:08:08] Speaker 04:
We've outlined in our brief the number of incidents

[01:08:11] Speaker 04:
It's a relatively small number of incidents occurring over about a three-year time period.

[01:08:18] Speaker 04:
So we don't think that rises to the level of a hostile work environment.

[01:08:20] Speaker 04:
And also, there's no indication of a protected characteristic that the allegedly hostile environment was predicated on.

[01:08:31] Speaker 04:
I know the issue, the question of retaliation was

[01:08:33] Speaker 04:
was posed to Mr. Wagner.

[01:08:36] Speaker 04:
Notably, the alleged hostile environment allegedly began in 2009, according to the complaint.

[01:08:43] Speaker 04:
There's no indication of any protected activity at that point.

[01:08:46] Speaker 04:
The first indication of protected activity is in 2011.

[01:08:51] Speaker 04:
So that would seem to undercut any inference that the hostile work environment was based on retaliation when there was no

[01:09:02] Speaker 04:
protected activity proceeding.

[01:09:04] Speaker 02:
All right, thank you very much.

[01:09:06] Speaker 02:
Thank you.

[01:09:07] Speaker 02:
Does Mr. Wagner have any time?

[01:09:11] Speaker 02:
Okay, well we've let both sides go over so I'll give you another two minutes.

[01:09:15] Speaker 02:
Please try and keep it at that.

[01:09:17] Speaker 01:
I'll try, Your Honor.

[01:09:18] Speaker 01:
Thank you.

[01:09:20] Speaker 01:
One of the things that we would submit is controlling here is that with respect to the 1800 hours, Council mentioned something about performance.

[01:09:34] Speaker 01:
Performance is not an issue in this case.

[01:09:36] Speaker 01:
time in attendance is the issue here.

[01:09:39] Speaker 01:
And in paragraph 21 of her complaint, Ms.

[01:09:45] Speaker 01:
Carter says, because my ailments impact on my attendance, I requested a reasonable accommodation.

[01:09:55] Speaker 01:
That is carried over in the portion of the complaint pertaining to

[01:10:01] Speaker 01:
the Rehabilitation Act claims.

[01:10:07] Speaker 01:
But more importantly, Your Honors, we would submit that where you have a claim that the 1800 hours is tied to a medical problem,

[01:10:25] Speaker 05:
you cannot say that because of eighteen hundred dollars per se this lady is out of court which is what the district court said but doesn't the complaint need to say something to the effect of I am qualified to perform this job even though I can't be there quite often because telework is sufficient to make me qualified to do the requirements of the job and there's nothing like that in the complaint because

[01:10:53] Speaker 01:
Well, Your Honor, one of the things that is clear here is that she was not under duress because of performance.

[01:11:04] Speaker 01:
She was not removed for performance.

[01:11:06] Speaker 01:
In fact, Mr. Andrews conceded that a performance was not a basis for her removal.

[01:11:13] Speaker 01:
The only issue was time and attendance.

[01:11:16] Speaker 01:
Now, if time and attendance is the only issue,

[01:11:19] Speaker 01:
then the question becomes whether or not a reasonable accommodation would have addressed that problem.

[01:11:24] Speaker 01:
Her doctor says, let her come in late sometimes.

[01:11:28] Speaker 01:
And that's what she saw.

[01:11:29] Speaker 01:
She saw a reasonable accommodation to come in late on occasion.

[01:11:34] Speaker 01:
One of the things about the specifications that are spelled out in the

[01:11:39] Speaker 01:
notice of proposal removal is that on three of the specifications, she was ruled AWOL for just 30 minutes.

[01:11:50] Speaker 01:
The restriction in her leave said you can only get

[01:12:00] Speaker 01:
permission for tardiness if it is an emergency.

[01:12:07] Speaker 01:
Only under emergency situations can you get any kind of leeway for tardiness.

[01:12:14] Speaker 03:
When she said, I want to come in late, did she say how late would solve the problem but still be reasonable from the employer's point of view?

[01:12:24] Speaker 01:
She did not specify how late, but she said a flexible schedule.

[01:12:29] Speaker 01:
And what she had mentioned in her deposition is that she would like to come in after 930.

[01:12:36] Speaker 01:
If they had said, you can come in at 1030, that would have knocked out 10 of the specifications set forth in the Notice of Proposed Removal.

[01:12:49] Speaker 01:
one of the things that the other side conceded was that her total AWOL hours amounted to 116 hours, and we even challenged that, that those hours were really were inflated.

[01:13:07] Speaker 01:
Now one thing, another thing, and I know I'm running overnight, I thank the court for its indulgence.

[01:13:13] Speaker 01:
On page

[01:13:15] Speaker 01:
271.

[01:13:16] Speaker 01:
The EEOC advised Mrs. Carter that anything that follows her initial complaint that is related, they're not going to accept that as an additional claim.

[01:13:37] Speaker 01:
It was with that in mind

[01:13:40] Speaker 01:
that when she filed her retaliation claim on July the 19th, she understood that anything that followed that would be automatically included in the retaliation claim.

[01:13:54] Speaker 01:
But more importantly,

[01:13:56] Speaker 01:
on page in the discussion 178 to 181 of Mr. Andrews' testimony.

[01:14:10] Speaker 01:
Ms.

[01:14:11] Speaker 01:
Carter said, hey, basically, because they called Mr. Andrews to testify about his actions,

[01:14:20] Speaker 01:
they have injected all of his conduct into this proceeding and we should be allowed to go into the retaliation claim here because Mr. Andrews testified about the things that he had done.

[01:14:33] Speaker 01:
And it is on that basis that we asserted the retaliation claim in the arbitration.

[01:14:43] Speaker 01:
And finally,

[01:14:44] Speaker 01:
We're dealing with notice pleading here, and notice pleading doesn't require a whole lot.

[01:14:52] Speaker 01:
All we have to do is place them on notice of what the claim is.

[01:14:58] Speaker 01:
The agency was well aware of the claim because they went through a discovery at the EEOC.

[01:15:05] Speaker 01:
They deposed Mrs. Carter.

[01:15:08] Speaker 01:
They went through an arbitration proceeding.

[01:15:10] Speaker 01:
They had the filings before the MSPB, the EEOC.

[01:15:14] Speaker 01:
They knew before this case was filed in district court what this whole thing was all about.

[01:15:19] Speaker 01:
And one of the things was performance is not an issue here.

[01:15:26] Speaker 01:
The only issue is time and attendance, and we could have addressed that with a little leeway in terms of allowing her to arrive late.

[01:15:37] Speaker 01:
That is what our doctor said, and that is what she sought, and a little flexibility.

[01:15:43] Speaker 01:
And the question is, it doesn't matter what her hours were.

[01:15:47] Speaker 01:
If timely attendance could be addressed with... We need to let all the other people who are sitting back there get their chance.

[01:15:57] Speaker 01:
I thank the court for its indulgence.

[01:15:59] Speaker 01:
I'm sorry I took too much time.

[01:16:01] Speaker 01:
No, no.

[01:16:02] Speaker 01:
It's okay.

[01:16:03] Speaker 01:
Thank you.

[01:16:03] Speaker 02:
We'll take the matter under submission.