[00:00:46] Speaker 01:
Our second case this morning is number 15-3047, Chenwick versus GSA.

[00:00:52] Speaker 01:
When you're ready, Mr. Peterson.

[00:01:22] Speaker 04:
Good morning, Your Honors.

[00:01:25] Speaker 04:
May it please the court.

[00:01:26] Speaker 04:
My name is James Peterson on behalf of petitioner Linda Shenwick, who joins me here today.

[00:01:31] Speaker 04:
Ms.

[00:01:32] Speaker 04:
Shenwick is a whistleblower.

[00:01:33] Speaker 04:
She has a long history of a whistleblower during her 30 years of public service.

[00:01:38] Speaker 04:
This is not in dispute.

[00:01:40] Speaker 04:
This was true in her prior job when she was a high-level official of the State Department, and it continued in her most recent job at the General Services Administration.

[00:01:49] Speaker 04:
For her efforts, however,

[00:01:51] Speaker 04:
She has not been shown appreciation for her public service.

[00:01:54] Speaker 04:
Instead, she has been retaliated against at the whistleblower and most recently removed from a job in which she undisputedly was successful and sent into a job where she has no significant duties.

[00:02:07] Speaker 04:
This is undisputed in this case.

[00:02:10] Speaker 01:
But the issue is whether there was clear and convincing evidence that she would have been transferred anyway, right?

[00:02:18] Speaker 04:
Correct.

[00:02:19] Speaker 04:
That is correct.

[00:02:20] Speaker 01:
Why was the board wrong about that?

[00:02:23] Speaker 04:
The board was wrong because the board relied on the conclusion of the administrative judge who specifically relied on the findings of an internal investigation that the agency did.

[00:02:38] Speaker 04:
And the reliance on this constituted a clear error of law.

[00:02:42] Speaker 04:
This investigation, which occurred in approximately 2009, was not of significant significance to the agency, such that they ever even showed it, the results of it, to the petitioner, Ms.

[00:02:59] Speaker 04:
Shenwick.

[00:02:59] Speaker 01:
Well, she had it during the proceeding, right?

[00:03:02] Speaker 04:
She had it later on, after we demanded it, threatening legal action.

[00:03:06] Speaker 01:
She had an opportunity to review it and respond to it in the course of this proceeding, right?

[00:03:12] Speaker 01:
Subsequently, but she did not... Subsequently, during this proceeding that we're reviewing here, she had the opportunity, right?

[00:03:19] Speaker 04:
But she was deprived of the opportunity... Yes.

[00:03:22] Speaker 04:
Yes, that's correct.

[00:03:23] Speaker 04:
But she was deprived of the opportunity to respond to it on a contemporaneous way at the time it was written.

[00:03:31] Speaker 04:
She did not have any opportunity to rebut any of these vague conclusions.

[00:03:37] Speaker 03:
Importantly... Can you elaborate on that?

[00:03:40] Speaker 03:
She did not have the opportunity in the administrative judge's hearing to show that what was said in this management inquiry document was erroneous?

[00:03:55] Speaker 04:
She did not have the opportunity.

[00:03:57] Speaker 04:
No, she did not have the opportunity at the time the report was being drafted.

[00:04:02] Speaker 03:
I think you're aware that's not what I asked you.

[00:04:05] Speaker 04:
Yes, I'm aware.

[00:04:07] Speaker 04:
I agree.

[00:04:08] Speaker 04:
There was.

[00:04:09] Speaker 04:
there was a back and forth during the administrative hearing.

[00:04:13] Speaker 03:
But she could have called the, as witnesses or otherwise examined whoever went to management that with the complaints that were then recorded in this management inquiry document and show that in fact this was all incorrect?

[00:04:36] Speaker 04:
Well, actually no, since most of the complaints were anonymous.

[00:04:39] Speaker 04:
And that just goes to show how this report, so-called report, was... Well, couldn't she have pointed that out to the board and the board judge could have given them whatever weight they wanted?

[00:04:51] Speaker 02:
I mean, what makes... What difference does it make that you could do it contemporaneously or at the board?

[00:04:57] Speaker 02:
It still would have been anonymous back when the report was issued.

[00:05:02] Speaker 04:
Well, the findings of the report that were important and were relied on by the administrative judge

[00:05:08] Speaker 04:
was not any specific allegations of wrongdoing.

[00:05:11] Speaker 04:
As a matter of fact, as the administrative judge says at least three times, there was no specific finding of any wrongdoing.

[00:05:18] Speaker 04:
The report, though, came up, although this was never released at the time, the report, however, said there were vague ideas about morale and other things in the office.

[00:05:29] Speaker 04:
And only when the agency needed

[00:05:32] Speaker 04:
to decide that they wanted to take action years later against Ms.

[00:05:36] Speaker 04:
Shenwick that they pull this report out of the drawer.

[00:05:39] Speaker 04:
And then all of a sudden it was like, oh, we have this long history of problems.

[00:05:42] Speaker 02:
But you could attack the credibility of that report during the hearing and the AJ could give it whatever weight he or she chose, right?

[00:05:49] Speaker 02:
Well, the point is that this is so... What different information would you have gotten if you would have been allowed to look at it prior to the time that would have changed now?

[00:06:01] Speaker 04:
Well, that is a good question.

[00:06:03] Speaker 04:
We do not know that because she was never given the opportunity.

[00:06:07] Speaker 04:
She was never given the opportunity to file a grievance at the time if there had been some sort of finding in this report that something had occurred.

[00:06:14] Speaker 04:
The passage of time made it impossible for her to rebut what was happening in this so-called report.

[00:06:22] Speaker 01:
That seems to be inconsistent with the way these board proceedings operate, the fact that there are past documents

[00:06:31] Speaker 01:
asserting bad conduct or subpar conduct by an employee, those are routinely considered in board proceedings and people are given the opportunity to rebut it.

[00:06:46] Speaker 01:
Isn't that the case?

[00:06:48] Speaker 04:
Well, yes, Your Honor, and that was done.

[00:06:50] Speaker 04:
You have to understand, let me try to explain the full perspective here.

[00:06:57] Speaker 04:
On one hand, during the hearing,

[00:06:58] Speaker 04:
There was a report based on anonymous sources, largely anonymous sources, that was not deemed credible enough to ever share at the time.

[00:07:08] Speaker 01:
Did you ever ask to have the anonymous sources identified so that those persons could be deposed or examined?

[00:07:16] Speaker 04:
That was not done.

[00:07:20] Speaker 04:
But what we did introduce at the hearing was that uncontested, years-long, years-long history

[00:07:29] Speaker 04:
an actual performance reviews which demonstrated the petitioner was an outstanding employee as she received each year the highest rating.

[00:07:39] Speaker 02:
And did the board accept those and evidence?

[00:07:41] Speaker 04:
She did accept that.

[00:07:43] Speaker 02:
So the board had the evidence you wanted to put forward.

[00:07:46] Speaker 02:
Did you try to exclude this report?

[00:07:49] Speaker 04:
We pointed out repeatedly that... Did you move to exclude the report as unreliable?

[00:07:55] Speaker 04:
We did not formally do that.

[00:07:57] Speaker 02:
Then isn't all of this just evidence that the AJ can consider and give whatever weight as the trier fact that they're entitled to give it?

[00:08:07] Speaker 04:
Well, this was evidence that was so extreme in the sense that... It was so extreme, why didn't you move to exclude it?

[00:08:15] Speaker 04:
Because we pointed out repeatedly that the flaws in the report, all of that was done.

[00:08:24] Speaker 04:
And the administrative judge erred, however, by ignoring the uncontested record of what was important.

[00:08:40] Speaker 04:
The performance reviews are intended to provide a contemporaneous record of what is happening with the employee.

[00:08:46] Speaker 04:
None of these so-called allegations from this so-called report ever appeared.

[00:08:51] Speaker 04:
There was no reason for us to think

[00:08:53] Speaker 04:
that the weight of this report would outweigh the meaningful documentary record of the performance reviews.

[00:09:06] Speaker 04:
If I may, the second issue of which here, which is important in this court, we respectfully suggest you consider is that what happened here was the use of what is now

[00:09:23] Speaker 04:
what is now becoming more and more common in federal employment, of virtual employment or teleworking.

[00:09:32] Speaker 04:
In most cases, however, this kind of arrangement is done for the benefit of an employee.

[00:09:39] Speaker 04:
Employees extended the opportunity to do this on a voluntary basis at the employee's discretion.

[00:09:46] Speaker 04:
In this case, however, this was turned upside down.

[00:09:52] Speaker 04:
choosing to not want the employee in their office anymore, assign the employee to an entirely different geographic region.

[00:10:02] Speaker 02:
That's because they abolished her position, right?

[00:10:06] Speaker 02:
And so they offered her a bunch of positions, which she declined, and then they ultimately put her in the position with the

[00:10:14] Speaker 02:
Washington, this Washington based office, but rather than make her move to Washington, they afforded her the opportunity to work virtually in the same building she worked in previously.

[00:10:26] Speaker 04:
With respect to your honor, that is not correct.

[00:10:29] Speaker 04:
The agency in its brief states that she declined.

[00:10:33] Speaker 04:
She never declined.

[00:10:34] Speaker 04:
There was never any specific job offer.

[00:10:36] Speaker 02:
I didn't see any place where she cooperated in trying to

[00:10:41] Speaker 02:
put forward resumes or the like in finding those other jobs.

[00:10:45] Speaker 04:
A resume was probably... It really doesn't matter, I mean, about those other jobs.

[00:10:52] Speaker 02:
Ultimately, her position was abolished.

[00:10:54] Speaker 02:
They transferred her, which they have the right to do, to another position.

[00:10:59] Speaker 02:
How is it a geographic reassignment when all she did was move four floors in the same building?

[00:11:04] Speaker 04:
Because the critical difference is that at any point, perhaps at the end of this proceeding,

[00:11:09] Speaker 04:
the agency will say, ah, now we're done.

[00:11:13] Speaker 04:
We're going to send you wherever we like.

[00:11:15] Speaker 02:
Well, then that may be an adverse action that's appealable at that point.

[00:11:18] Speaker 02:
At this point, I don't see how it's a geographic reassignment.

[00:11:21] Speaker 04:
Well, because you can predict that the agency will say, well, you were reassigned back in 2011.

[00:11:29] Speaker 04:
Nothing has changed.

[00:11:30] Speaker 04:
They'll just say that we took away the voluntary telework.

[00:11:34] Speaker 04:
And that's what voluntary telework

[00:11:36] Speaker 04:
and that's where we'll find ourselves.

[00:11:39] Speaker 04:
That's the Catch-22 we're trying to highlight, is that in this case, the virtual employment is being used as a club against the whistleblower and not as something for the benefit.

[00:11:53] Speaker 04:
She's been isolated from others, she's been given no significant work for four years, and the agency at its whim afterwards will be able to

[00:12:06] Speaker 04:
rescind the telework, leaving the employee without an option.

[00:12:12] Speaker 03:
Can I just ask, I should know the answer to this, but what's the date of the management inquiry report?

[00:12:19] Speaker 01:
2009.

[00:12:20] Speaker 01:
2009, approximately.

[00:12:23] Speaker 03:
Sometime or other?

[00:12:24] Speaker 03:
Yes.

[00:12:25] Speaker 03:
This is that 605 to 616 of the red appendix, and that document doesn't have a date on it, is that right?

[00:12:36] Speaker 03:
That may be right.

[00:12:39] Speaker 03:
The reason I guess I want to understand what I can about that is you make, I think, a fairly big deal about how it was years earlier.

[00:12:49] Speaker 03:
I guess I want to understand exactly what time period we're talking about.

[00:12:55] Speaker 04:
It was years earlier.

[00:12:59] Speaker 04:
This process went on.

[00:13:00] Speaker 04:
This process went on.

[00:13:01] Speaker 03:
So it was at least two years later.

[00:13:04] Speaker 03:
So let's assume it's December 31st, 2009, because you haven't given anything within the year 2009.

[00:13:09] Speaker 03:
And then my understanding was that sometime in either 2010 or by the end of the first half of 2011, Ms.

[00:13:20] Speaker 03:
Shendwick knew about the management inquiry report.

[00:13:23] Speaker 04:
It was roughly July 2011, middle of 2011.

[00:13:31] Speaker 04:
This is when she found out for the first time that there was anything adverse to her in this report when the agency decided that they wanted to do something and having no other documentary record of any underperformance on her part, they pulled out this, which was an informal inquiry done by low-level employees in essentially the human

[00:14:00] Speaker 04:
Human Resources Office.

[00:14:01] Speaker 04:
It had none of the aspects of due process and no opportunity during that phase for the employee to contest.

[00:14:12] Speaker 01:
Okay.

[00:14:12] Speaker 01:
Mr. Peterson, you want to save the rest of your time?

[00:14:14] Speaker 04:
Yes, please.

[00:14:19] Speaker 01:
Ms.

[00:14:19] Speaker 01:
Lester Sabotkin.

[00:14:22] Speaker 00:
Thank you, Your Honor.

[00:14:28] Speaker 00:
Good morning, Your Honors.

[00:14:30] Speaker 00:
May it please the court?

[00:14:31] Speaker 00:
We ask this court to affirm the decision below because the board correctly determined that the agency would have reassigned Petitioner in the absence of her whistleblowing activities.

[00:14:40] Speaker 01:
Let me tell you, there's one thing that you argue in your brief which seems to me to be troubling and that is that the board has no jurisdiction to consider a due process violation.

[00:14:52] Speaker 01:
I simply don't understand that.

[00:14:54] Speaker 01:
If there had been a motion to exclude this report on due process grounds, surely the board would have the authority to decide whether that report should have been excluded.

[00:15:05] Speaker 00:
Yes, Your Honor.

[00:15:07] Speaker 00:
That probably is the case.

[00:15:08] Speaker 00:
That would have been a procedural question for the board.

[00:15:11] Speaker 00:
The cases that I cited state that in an IRA appeal, the jurisdiction, the scope of review for the board is limited to the issue of reprisal for whistleblowing.

[00:15:23] Speaker 01:
It certainly can decide whether particular evidence was improperly admitted.

[00:15:30] Speaker 01:
So I don't understand your jurisdictional argument.

[00:15:32] Speaker 01:
It makes no sense to me.

[00:15:33] Speaker 00:
Well, I'll step back for a minute.

[00:15:36] Speaker 00:
The way I read Petitioner's argument, their due process argument, her due process argument, is that she had two arguments.

[00:15:43] Speaker 00:
First, that there was a due process violation in 2009.

[00:15:46] Speaker 00:
That's outside of the scope of the board.

[00:15:48] Speaker 00:
Now, an evidentiary ruling would, of course, be within the scope of the board.

[00:15:52] Speaker 00:
But whether or not her due process... Well, that's what they're arguing.

[00:15:55] Speaker 01:
They're saying that they shouldn't have considered the report.

[00:15:58] Speaker 01:
And that... Lack of jurisdiction to consider that issue, is there?

[00:16:02] Speaker 00:
I believe that the board would have jurisdiction to consider the evidentiary issue.

[00:16:05] Speaker 00:
Whether or not the board would have jurisdiction to do anything in response to an alleged violation in 2009, that is outside of the scope of an IRA appeal.

[00:16:14] Speaker 00:
But Your Honor is correct that of course they have jurisdiction to consider evidentiary matters.

[00:16:19] Speaker 01:
And that's all their argument.

[00:16:20] Speaker 00:
Well, and that issue, to the extent that they're arguing that the petitioners due process rights were violated at the hearing, that issue has not been preserved.

[00:16:30] Speaker 00:
They did not, petitioners did not object at the hearing.

[00:16:33] Speaker 00:
She did not raise that argument in her briefing before the administrative judge.

[00:16:36] Speaker 00:
She gave the judge no option to make that evidentiary ruling.

[00:16:40] Speaker 00:
And she didn't raise that.

[00:16:42] Speaker 00:
As this court has stated, a party in an MSD proceeding must raise an issue before the administrative judge.

[00:16:47] Speaker 01:
That's different from board's jurisdiction.

[00:16:51] Speaker 01:
You heard before our concerns about some of these jurisdictional arguments that are made that the government sometimes seems to want to put everything in the jurisdictional box.

[00:17:03] Speaker 01:
This is not a jurisdictional defect.

[00:17:06] Speaker 01:
They can argue that the report shouldn't have been relied on.

[00:17:09] Speaker 01:
It's improper.

[00:17:10] Speaker 01:
You admit that.

[00:17:11] Speaker 00:
That is true, Your Honor.

[00:17:13] Speaker 00:
My argument was, and perhaps it wasn't clear, my argument was that

[00:17:17] Speaker 00:
the, whether or not her rights were violated in 2009 is a separate issue.

[00:17:21] Speaker 00:
But as an evidentiary matter, yes.

[00:17:23] Speaker 00:
Of course, the administrative judge has the discretion to make evidentiary.

[00:17:27] Speaker 02:
Is what you're saying, I didn't follow this either, but it's what you're saying that the investigation and management actions or inaction, I guess, because they didn't do anything in 2009, isn't the type of adverse action that the board can't review whether that was proper.

[00:17:43] Speaker 00:
Yes, that is correct.

[00:17:44] Speaker 02:
And I'm asking to have that review.

[00:17:46] Speaker 02:
Yeah, that doesn't seem to be what they're asking.

[00:17:47] Speaker 01:
You seem to re-characterize their argument, then say there's no jurisdiction over an argument they don't make.

[00:17:53] Speaker 00:
Well, and if that's the case, then I would apologize.

[00:17:56] Speaker 00:
The way I read their argument, like I said, is that they're arguing both a violation in 2009 and a violation at the hearing.

[00:18:02] Speaker 00:
And of course, they haven't preserved the issue of whether or not there was a due process violation at the hearing.

[00:18:08] Speaker 00:
In addition, even if they had raised that argument before the board,

[00:18:13] Speaker 00:
the essential requirements of due process are noticed and an opportunity to be heard.

[00:18:17] Speaker 00:
In this case, the petitioner knew of the report in the middle of 2010.

[00:18:24] Speaker 00:
She testified that she discussed the report, not that she read it, but she discussed it with her supervisor in her mid-year review in 2010.

[00:18:32] Speaker 00:
She received a copy in August of 2011.

[00:18:34] Speaker 00:
The hearing was not until 2013, November, more than two years later.

[00:18:40] Speaker 00:
So she certainly had ample notice of the report.

[00:18:44] Speaker 00:
She also had the opportunity and took the opportunity to question the weight of the report.

[00:18:49] Speaker 00:
She testified and called seven witnesses.

[00:18:52] Speaker 00:
This satisfies the due process requirements, especially in light of the fact that she did not object to the admission of the report.

[00:18:59] Speaker 00:
And evidentiary rulings are within the sound discretion of the board and its officers.

[00:19:05] Speaker 00:
Petitioner's second argument

[00:19:09] Speaker 00:
is that she was subject to a management directed geographic reassignment.

[00:19:14] Speaker 00:
There was no geographic reassignment.

[00:19:16] Speaker 00:
She remained in the same building.

[00:19:18] Speaker 00:
She was never asked to relocate.

[00:19:20] Speaker 00:
The case that she relies upon at Miller versus Department of the Interior

[00:19:25] Speaker 02:
What happens if the agency does what she suggested they could do right after this hearing and revokes the teleworking and says you have to move to Washington?

[00:19:36] Speaker 02:
Is that an appealable action?

[00:19:38] Speaker 00:
Then she would be in the situation that the petitioner and Miller was in.

[00:19:41] Speaker 00:
If she refused to relocate and she was terminated, she would have grounds for an adverse action.

[00:19:47] Speaker 00:
These events haven't come to pass yet.

[00:19:50] Speaker 00:
Essentially, she's arguing

[00:19:51] Speaker 00:
If the agency terminates her right to telework, which hasn't happened, if she's asked to relocate to DC and if she refuses, then she might be terminated.

[00:20:00] Speaker 00:
None of these have come to happen.

[00:20:03] Speaker 00:
So what she's asking for at this point is an advisory opinion.

[00:20:06] Speaker 00:
If all of those maybes do in fact occur, then she would be in the same situation as Miller and she would be able to bring an adverse action based on a termination under Chapter 75.

[00:20:20] Speaker 00:
But at this point, it's not presently adjudicable.

[00:20:23] Speaker 00:
The remainder of petitioners' arguments, to the extent that they're separate, go to the weight of the evidence.

[00:20:29] Speaker 00:
This is not a de novo review.

[00:20:30] Speaker 00:
And the administrative judge and the board are given deference for their determination of the weight of the evidence, especially in this case, where the administrative judge specifically found that petitioners' testimony, at least on certain issues, was not credible based on demeanor determinations.

[00:20:51] Speaker 00:
Thank you, Your Honors.

[00:20:53] Speaker 01:
Okay.

[00:20:55] Speaker 01:
Thank you, Ms.

[00:20:55] Speaker 01:
Luchista-Botkin.

[00:20:57] Speaker 01:
Mr. Peterson, you've got a little over two minutes here.

[00:21:01] Speaker 04:
Just briefly, Your Honor.

[00:21:02] Speaker 04:
First, I think what counsel indicated regarding the teleworking privilege illustrates the point quite well.

[00:21:14] Speaker 04:
What has happened here is they're going to

[00:21:17] Speaker 04:
They have the opportunity as a result of what they're doing is to withdraw this teleworking privilege at any point, and then they'll be able to say, you must report to Washington.

[00:21:33] Speaker 04:
The withdrawal of the teleworking, however, they will almost certainly come back and say it's not the adverse action.

[00:21:42] Speaker 04:
It will be the refusal to show up in Washington, which is what she indicated.

[00:21:47] Speaker 03:
Even that won't be the adverse action.

[00:21:49] Speaker 03:
The adverse action will be their response to the refusal.

[00:21:55] Speaker 03:
Right, but that's right.

[00:21:56] Speaker 03:
The 7512 list.

[00:21:59] Speaker 03:
Very specific things, right?

[00:22:01] Speaker 03:
Removal for you.

[00:22:02] Speaker 03:
That's what we're talking about.

[00:22:03] Speaker 04:
But it doesn't list the withdrawal of a teleworking privilege.

[00:22:06] Speaker 03:
Right.

[00:22:06] Speaker 03:
So that's not litigable before the board unless there's some other basis for bringing it to the board.

[00:22:13] Speaker 03:
Isn't that?

[00:22:15] Speaker 02:
I mean, it's not... I mean, if the agency sends her a letter saying, we're going to remove the teleworking privileges, but she keeps going to work in New York and keeps doing her job and they don't do anything about it, there's no adverse action.

[00:22:29] Speaker 02:
the adverse action is when they actually remove her.

[00:22:34] Speaker 04:
Well, unfortunately, we might see that scenario.

[00:22:39] Speaker 02:
But if we do, she'll have appeal rights then.

[00:22:41] Speaker 02:
I mean, you're asking us to say, basically, if the agency revokes her teleworking privileges, and if she refuses the reassignment, and if they remove her, that that's an appealable action.

[00:22:55] Speaker 02:
Well, of course it is.

[00:22:56] Speaker 02:
But those are three conditional things that have to happen before we would have jurisdiction.

[00:23:01] Speaker 04:
Well, that's what... The conundrum here is that they've created this situation where the employee then will be faced with no options other than to... Well, the other option is that the agency actually believes in good faith that it's found her a position that she can work out of in a teleworking capacity forever.

[00:23:23] Speaker 02:
And if that's the case,

[00:23:24] Speaker 02:
what adverse action is there for us to consider?

[00:23:27] Speaker 04:
Well, if you're suggesting that, then the agency, good faith, the fact the agency does not dispute, and it's never disputed during the course of this proceeding, that she's had no substantial work for four years.

[00:23:39] Speaker 04:
So that's any indication of where the agency is.

[00:23:45] Speaker 04:
But finally, on the other argument, you know,

[00:23:50] Speaker 04:
As I cited in my brief in Stone v. FDIC, the due process argument, whether we call it due process or whether we call it simply the improper reliance on evidence, can be raised at any time.

[00:24:05] Speaker 04:
So thank you, Your Honor.

[00:24:08] Speaker 01:
Okay.

[00:24:08] Speaker 01:
Thank you, Mr. Peterson.

[00:24:10] Speaker 01:
I thank both counsel.

[00:24:11] Speaker 01:
The case is submitted.