[00:00:20] Speaker 05:
The final case for argument this morning is 143097 Westburn versus DVA.

[00:01:23] Speaker 01:
May it please the court?

[00:01:24] Speaker 01:
My name is Colin Walsh and I represent Dr. Washburn in this appeal.

[00:01:28] Speaker 01:
The MSTB decision should be reversed for one reason.

[00:01:32] Speaker 01:
Dr. Washburn was not given a meaningful opportunity to improve her performance because she was held to a different higher standard during her performance improvement plan.

[00:01:41] Speaker 05:
Isn't by definition, I mean I used to be in the government a long time ago, I mean you have a performance improvement plan, by definition you're supposed to be treated differently.

[00:01:51] Speaker 05:
I mean the point is you're supposed to be

[00:01:53] Speaker 05:
supervised and given feedback, it's an opportunity for you to improve.

[00:01:58] Speaker 05:
That's the point, right?

[00:02:00] Speaker 05:
And therefore, the fact that you might be treated somewhat differently with greater care or whatever, that's what's required in a performance improvement plan, is it not?

[00:02:10] Speaker 01:
Well, yes, Your Honor.

[00:02:11] Speaker 01:
That is correct.

[00:02:11] Speaker 01:
A performance improvement plan, the whole point is to improve performance.

[00:02:15] Speaker 01:
But that doesn't mean changing the standard under which your performance is judged.

[00:02:19] Speaker 01:
And that's what happened here.

[00:02:20] Speaker 01:
You have to be given a meaningful opportunity

[00:02:23] Speaker 01:
And the statute requires an opportunity to improve.

[00:02:26] Speaker 01:
This is 5 USC 4302.

[00:02:27] Speaker 01:
The regulations require a reasonable change.

[00:02:30] Speaker 05:
So tell us precisely what standard existed and what changed.

[00:02:34] Speaker 05:
What was the new standard?

[00:02:36] Speaker 01:
Well, so there's three things that happened.

[00:02:38] Speaker 01:
First of all, and these are all undisputed facts agreed to by the agency, in fact, in their own briefing to this court, but Larry Ross, her supervisor,

[00:02:47] Speaker 01:
looked at her work more harshly than he did before the PIP and more harshly than he did other employees.

[00:02:55] Speaker 01:
In fact, he even testified under oath at the hearing, I did not review everyone's work to the level that I reviewed Ms.

[00:03:00] Speaker 01:
Washburn's.

[00:03:01] Speaker 01:
That's on appendix page 9.

[00:03:02] Speaker 05:
Well, but that was the point I was trying to make at the outset, which is you used the adjective harshly.

[00:03:08] Speaker 05:
But isn't it, I mean, he scrutinized her work during this PIP period more closely than he scrutinized other employees.

[00:03:19] Speaker 05:
Isn't that how it's supposed to be?

[00:03:21] Speaker 05:
That a supervisor is supposed to work more closely.

[00:03:24] Speaker 05:
I mean, the point of the PIP is to help the employee out, right?

[00:03:28] Speaker 05:
To try to make sure that their allegedly substandard performance is elevated.

[00:03:35] Speaker 05:
And is it not the best way to do that, to have a supervisor stay on top of things more so than he otherwise could?

[00:03:43] Speaker 01:
Well, no, because the same performance standards have to be applied both during the PIP and before the PIP.

[00:03:49] Speaker 01:
Otherwise, you're changing the rules of the game.

[00:03:51] Speaker 05:
You're moving the goalposts.

[00:03:52] Speaker 05:
That's why I asked you.

[00:03:54] Speaker 05:
When I asked you about what was different, you didn't cite me the standard change.

[00:03:59] Speaker 05:
So you started to describe he treated her more harshly, and he scrutinized her more closely.

[00:04:06] Speaker 05:
To me, that's a different question.

[00:04:08] Speaker 05:
Are you saying that a different standard was employed into evaluating her work than with respect to other employees?

[00:04:16] Speaker 01:
Perhaps I'm being a little loose when I use standard.

[00:04:18] Speaker 01:
What I mean to say is the way her work was reviewed and evaluated changed.

[00:04:22] Speaker 01:
So they didn't actually change the standard.

[00:04:24] Speaker 01:
The standard was do good work.

[00:04:26] Speaker 01:
They didn't say, they didn't change the standard to do better work during the PIP.

[00:04:30] Speaker 01:
What they did though was they evaluated her work differently in terms of what good work was.

[00:04:36] Speaker 01:
So for example, Larry Ross, well, so for example, Dr. Washburn would draft compliance reports.

[00:04:41] Speaker 01:
Then she would submit it to a program analyst who would

[00:04:45] Speaker 01:
Check it, incorrect grammar, typo, structure, format, make sure the proper template was being used, make sure templated language was being used.

[00:04:53] Speaker 01:
Is this Ms.

[00:04:53] Speaker 01:
Kincaid?

[00:04:54] Speaker 01:
Yes, her name, Misty Kincaid in this case.

[00:04:58] Speaker 01:
And you can find out all about her duties on Appendix pages 11-11.

[00:05:00] Speaker 02:
And during the PIP, Mr. Ross was reviewing the work that your client otherwise would have passed through Ms.

[00:05:11] Speaker 02:
Kincaid.

[00:05:13] Speaker 02:
and he was reviewing it directly to try to get a sense what kind of shape was it in when it was being given to Ms.

[00:05:21] Speaker 02:
Kincaid.

[00:05:22] Speaker 01:
Your Honor is exactly correct.

[00:05:24] Speaker 01:
Larry Ross removed that step of review, that normal work process that all the other employees had.

[00:05:29] Speaker 02:
Right, but what's wrong with that?

[00:05:33] Speaker 02:
that he was trying to figure out was the work that Dr. Washburn was giving to the editor, the reviewer, too far off the mark, leaving too much for the editor, reviewer, to do.

[00:05:51] Speaker 02:
He had to look at it directly, right?

[00:05:55] Speaker 01:
Well, if that's the contention, then I could see why he would want to do that, but that's not the standard that the other employees are held to.

[00:06:02] Speaker 01:
He actually doesn't know whether or not her work was submitted with too many errors, or whether any other employee's work was submitted that's worse than Dr. Watchman's.

[00:06:10] Speaker 01:
And that's because it all passes through Ms.

[00:06:12] Speaker 01:
Kincaid.

[00:06:13] Speaker 01:
And in fact, Mr. Ross, under oath, acknowledged that he was looking for these errors, these errors that he would not have seen prior to the PIP.

[00:06:21] Speaker 01:
And because he put her on the PIP, he stated,

[00:06:24] Speaker 01:
I would say a significant portion, if not all of those formatting errors, would not have made it to me.

[00:06:29] Speaker 01:
And that is the reason, that is the very reason that I asked to see that, to see Ms.

[00:06:33] Speaker 01:
Washburn's work before it had a chance to be edited.

[00:06:37] Speaker 03:
I would just echo what Judge Serrato said.

[00:06:40] Speaker 03:
What's wrong with that?

[00:06:40] Speaker 03:
You have an employee who you're trying to assess.

[00:06:43] Speaker 03:
Is this person, should she be removed or not?

[00:06:46] Speaker 03:
I mean, should there be some other kind of progressive discipline?

[00:06:49] Speaker 03:
and you know that typically you would get her work having passed through this editorial function and one of the things you're trying to figure out is how motivated is this person to improve her performance.

[00:07:01] Speaker 03:
So how do you know that?

[00:07:02] Speaker 03:
I mean isn't looking at the raw material one way to make that assessment?

[00:07:06] Speaker 01:
It might be one way to make that assessment but it's not

[00:07:09] Speaker 01:
It's not allowed to be used against that employee.

[00:07:12] Speaker 01:
It's changing the rules.

[00:07:13] Speaker 01:
It's moving the goalposts.

[00:07:14] Speaker 01:
Here, before the mail.

[00:07:16] Speaker 03:
Let me just engage with you about that.

[00:07:18] Speaker 03:
So your client knows that she's been criticized for doing substandard work and making a lot of errors that shouldn't have been made.

[00:07:27] Speaker 03:
And she knows that she's under a performance improvement plan.

[00:07:30] Speaker 03:
So she knows she's going to get additional scrutiny because of that.

[00:07:34] Speaker 03:
She knows that.

[00:07:36] Speaker 03:
So what's the surprise with her getting additional scrutiny?

[00:07:40] Speaker 03:
Why is that unfair?

[00:07:42] Speaker 01:
It's not fair because it's looking at different mistakes.

[00:07:45] Speaker 01:
So before her performance was a problem, or before they said her performance was a problem,

[00:07:51] Speaker 01:
All of these mistakes may have been existing, may have existed.

[00:07:54] Speaker 01:
She may have made them.

[00:07:55] Speaker 01:
We don't know, because he didn't look at it.

[00:07:57] Speaker 01:
And he didn't look at it for anybody else.

[00:07:58] Speaker 03:
He's trying to assess how motivated she is, how seriously she's taking the discipline, how likely she is to improve her performance.

[00:08:05] Speaker 03:
So if he looks at the raw material, whether it's improving, that's to her credit.

[00:08:11] Speaker 03:
And if he looks at it and it's full of basic mistakes that should have been caught by Stelcheck, that's not to her credit.

[00:08:18] Speaker 03:
So how is that unfair as a matter of employee management?

[00:08:22] Speaker 01:
Because it changes the rules.

[00:08:24] Speaker 01:
It moves the goalposts.

[00:08:25] Speaker 01:
It puts a different standard.

[00:08:28] Speaker 01:
So before the PIP, she didn't have to worry about whether or not there were typos, whether or not grammar was completely correct, because Missy would look at that when she was put on the PIP.

[00:08:38] Speaker 05:
What deficiencies led to the PIP?

[00:08:40] Speaker 01:
What deficiencies?

[00:08:41] Speaker 01:
Yeah.

[00:08:41] Speaker 01:
It had to do with errors found, I believe, on a CBOK report and several other compliance reports.

[00:08:47] Speaker 02:
And not just wording errors, or at that stage, I gather there were, roughly speaking, two kinds of errors.

[00:08:54] Speaker 02:
Inaccuracies.

[00:08:56] Speaker 02:
Patients were included that shouldn't have been, or vice versa.

[00:08:59] Speaker 02:
And then there were writing errors.

[00:09:03] Speaker 02:
Were both part of what led to the initiation of the PIP?

[00:09:12] Speaker 02:
did both occur during the review, during the PIP process, or how do you separate those things?

[00:09:20] Speaker 01:
Well, I believe the agency would argue that all of those things led to the PIP and all of those things continued during the PIP.

[00:09:28] Speaker 01:
But again, you can't change the route.

[00:09:31] Speaker 01:
So they didn't

[00:09:33] Speaker 01:
So you can't change how work is evaluated.

[00:09:36] Speaker 01:
And the MSPB has repeatedly held that the opportunity to improve must be a meaningful opportunity, and it is one of the most important substantive rights a federal employee has.

[00:09:46] Speaker 01:
It's also a fundamental substantive importance.

[00:09:49] Speaker 01:
This court has recognized that as well in its cases reviewing MSPB decisions.

[00:09:54] Speaker 01:
The other thing that they did, showing that this was not a meaningful opportunity for Dr. Walshburn, was they created a secret negative file

[00:10:04] Speaker 01:
of her work.

[00:10:05] Speaker 01:
While she's on this PIP, while she's going through trying to perform it, they're writing negative reports of contact and secretly putting them in her font.

[00:10:15] Speaker 02:
For a moment, take out the word secret and take out the word negative.

[00:10:20] Speaker 02:
Is there anything unexpected about the reviewer during the PIP process making a record of each contact?

[00:10:35] Speaker 02:
And if, and let's assume now that Mr. Ross was seeing it absolutely straight and fair, and they were negative because there was reason to be negative, and then the next question I suppose is, was he obliged to be publicizing or sharing with her his record of each of those contacts?

[00:10:57] Speaker 02:
I'm trying to separate out what's nefarious, if anything, about the secret negative reports of contacts.

[00:11:05] Speaker 01:
Well, so what's nefarious about it is that Dr. Washburn wasn't allowed to see him, didn't know they were happening, not allowed to reply to him, and not allowed to rebut them in any way.

[00:11:14] Speaker 02:
So what would happen is Dr. Washburn would want... In the MSPB proceedings, was she allowed to examine those and contest them?

[00:11:26] Speaker 01:
Well yes, but only after she was removed.

[00:11:28] Speaker 05:
So what happened?

[00:11:30] Speaker 05:
Didn't she get a proposed removal that she could respond to?

[00:11:34] Speaker 05:
So she had that.

[00:11:36] Speaker 05:
level two, right?

[00:11:38] Speaker 01:
Yeah, but the proposed removal came at the end of the performance improvement plan.

[00:11:41] Speaker 05:
So she had the opportunity to respond to whatever negative assessment arose from the PIP at the agency level and then again before the MSPB as Judge Toronto pointed out.

[00:11:52] Speaker 05:
Am I right about that?

[00:11:54] Speaker 01:
Yes, she did have a chance to respond to the proposed removal and she did challenge it through the MSPB as well.

[00:11:59] Speaker 01:
But that doesn't fix the fact that during the PEP, when she's supposed to be given this opportunity to improve her performance, she's secretly documenting all of these conversations, putting them in her file and then using them later in the proposed removal.

[00:12:14] Speaker 05:
Wait, you say documented these conversations.

[00:12:17] Speaker 05:
What conversations?

[00:12:18] Speaker 05:
You mean conversations between Mr. Ross and Ms.

[00:12:22] Speaker 05:
Washburn?

[00:12:23] Speaker 05:
Yes.

[00:12:24] Speaker 05:
Well, so she knew they were, if the two of them were on a conversation,

[00:12:28] Speaker 05:
They both knew what was happening, right?

[00:12:30] Speaker 05:
The fact that he wrote down something she knew about the conversation, or she was a party to it, right?

[00:12:37] Speaker 01:
Well, yes.

[00:12:37] Speaker 01:
But at the same time, he characterized it the way he characterized it.

[00:12:42] Speaker 01:
Didn't tell anybody that he was doing it, and then used it against it.

[00:12:44] Speaker 01:
This is a secret negative file.

[00:12:46] Speaker 01:
And the MSPB has actually found that this denies an employee the opportunity

[00:12:51] Speaker 01:
the meaningful opportunity to improve performance.

[00:12:54] Speaker 05:
I don't understand, but you're saying what he wrote down was what he told her.

[00:12:59] Speaker 05:
So if you're the employee and I'm the supervisor and I tell you you're doing X, Y, and Z wrong and I'd like you to do the following by tomorrow and then I go back to my office and I write down, I just told this employee to do X, Y, and Z and I'll document it tomorrow.

[00:13:12] Speaker 05:
Is that what we're talking about here and what's secret about that?

[00:13:16] Speaker 05:
You know what I've told you and I know what I've told you.

[00:13:18] Speaker 05:
What's the secret?

[00:13:19] Speaker 01:
Well, the secret is that that's not exactly what happened in this particular case.

[00:13:23] Speaker 01:
What would happen is Dr. Washburn would ask questions, would talk to Mr. Ross, ask about leave, ask about requesting a transfer.

[00:13:30] Speaker 01:
And Mr. Ross would go then and write down, Dr. Washburn has a fundamental misunderstanding of these processes.

[00:13:38] Speaker 01:
She asked me this question.

[00:13:39] Speaker 01:
I can't believe she asked me this question.

[00:13:41] Speaker 01:
These reports of contact all characterize these and are used against her later to show that her performance was not important.

[00:13:48] Speaker 05:
And what, in your view, would have been necessary?

[00:13:50] Speaker 05:
That he would have, when he had this reaction to what she was saying, he would have confronted her at the time and said, I can't believe you're asking me this question?

[00:14:00] Speaker 05:
What would have made this non-secret?

[00:14:03] Speaker 01:
Well, what would have made it non-secret would be that very thing, making it not secret, not writing down your own characterization of a conversation, putting it in the employee's file, and then later using it to say, oh, you didn't improve your performance.

[00:14:16] Speaker 01:
Or here you have a fundamental understanding of this process.

[00:14:19] Speaker 01:
And then during the performance improvement plan, she asked,

[00:14:23] Speaker 01:
Her performance is supposed to be improved.

[00:14:25] Speaker 01:
The regulations require a supervisor to assist with that.

[00:14:30] Speaker 01:
And so if he is unwilling to do that, or if he is assisting and saying, oh, but the fact that she asked this is terrible, that's not giving her a meaningful opportunity.

[00:14:39] Speaker 01:
That shows that they have decided that she's going to be removed and that they are building up a case.

[00:14:44] Speaker 01:
And that's exactly what the MSPB found in Zhang v. Defense of Investigative Service.

[00:14:50] Speaker 01:
where they said, on the basis of the supervisor's testimony, the frequency and tenor of his confidential memorandum to the personnel file regarding the appellant's performance and the nature of his counseling sessions with her, the appellant in this case was in fact not given a fair and meaningful opportunity to improve her performance.

[00:15:05] Speaker 03:
But that sounds like a very fact-specific type of analysis.

[00:15:08] Speaker 03:
I mean, it's quite possible that someone simply legitimately had a negative reaction to what an employee was saying or asking.

[00:15:15] Speaker 03:
And he or she's entitled to that reaction, are they not?

[00:15:20] Speaker 01:
Yes, I guess I don't quite understand your question.

[00:15:26] Speaker 03:
My question is, sure, I can imagine a case where you can look at the notes to the file and it becomes clear that the person had a pre-existing bias or wasn't at least been interested in anything positive that the employee had to say.

[00:15:38] Speaker 03:
That would be problematic.

[00:15:40] Speaker 03:
But you could also look at negative comments and say, this is just the honest assessment that the supervisor is giving.

[00:15:45] Speaker 03:
So it's a fact-specific inquiry.

[00:15:47] Speaker 03:
The problem isn't that the supervisor made notes or that the notes were negative.

[00:15:52] Speaker 03:
If there's a pattern of notes, negative notes, it suggests that there was never any

[00:15:59] Speaker 03:
thought that the employee might improve or that there was something biased about the process.

[00:16:03] Speaker 03:
So it's not the fact that the notes were made.

[00:16:05] Speaker 03:
You'd have to look at the content of the notes and make an assessment whether the person simply never had a chance.

[00:16:12] Speaker 01:
Well, yes, Your Honor is correct.

[00:16:14] Speaker 01:
And these notes were negative and they showed that they did not

[00:16:17] Speaker 01:
Larry Ross did not think she was going to improve.

[00:16:20] Speaker 01:
That's why, that's the whole point of him taking... Maybe that was reasonable.

[00:16:24] Speaker 03:
Don't you need to look at the entire fact situation to see whether that is a reasonable conclusion or not?

[00:16:31] Speaker 01:
Yes, I suppose you do, but the fact is he didn't give anybody the opportunity to fix these problems that he was secretly noting in the performance form.

[00:16:42] Speaker 05:
Why don't we hear from the government?

[00:16:55] Speaker 00:
May it please the court.

[00:16:56] Speaker 00:
Substantial evidence supports the agency's decision to remove Ms.

[00:17:00] Speaker 00:
Washburn because she could not perform critical functions of her job after being given a reasonable opportunity to improve.

[00:17:06] Speaker 05:
Can I, can you address the first point your friend made which was if it was, if someone else was doing the first level of editing and review for just commas and typos,

[00:17:19] Speaker 05:
How would that have been part of her requirements of her job if that wasn't her job, if all other people were getting this level of review and she was otherwise getting it if she went back to her other job, her job if she were retained?

[00:17:34] Speaker 00:
Well, Your Honor, this would be a question of whether there was an improper change or impermissible change in her performance standards.

[00:17:40] Speaker 00:
And here both Mr. Ross wanted to look at whether she was actually submitting work that in accordance with the performance standards required only minor revisions.

[00:17:49] Speaker 00:
And substantial evidence supports that this is reasonable in light of the fact that it was not in Ms.

[00:17:55] Speaker 00:
Kincaid's job description that she would catch these types of errors, nor was it in Ms.

[00:17:59] Speaker 00:
Washburn's description that there would be a performance standard that there would be someone to take this first cut.

[00:18:04] Speaker 05:
But were all other employees subject to the existence of Ms.

[00:18:09] Speaker 05:
Kincaid in terms of the initial review?

[00:18:12] Speaker 00:
Well, Your Honor, yes, Your Honor, she did take a first cut at these types of products, written products, but I think it's important to note that a substantial portion of the proposed removal and the reasons why Ms.

[00:18:24] Speaker 00:
Washburn was removed, and this is at 150 through 153 of the appendix, was not due to the fact that she was making grammar errors.

[00:18:32] Speaker 00:
It was to do with the fact that there were substantial substantive errors in her work.

[00:18:36] Speaker 00:
For example, on page 150 of the Joint Appendix, Mr. Ross noted that she wasn't properly populating the databases.

[00:18:45] Speaker 00:
She wasn't including or excluding a proper patient population.

[00:18:49] Speaker 00:
And doing that changes the analysis.

[00:18:51] Speaker 00:
For example, if you're analyzing inpatient versus outpatient, you only want to look for this type of review.

[00:18:57] Speaker 00:
the care that in-patients received, and that she wasn't accurately recording that information.

[00:19:02] Speaker 00:
And then she wasn't, therefore, with diabetes and heart failure patients adequately assessing the types of care these patients received.

[00:19:10] Speaker 00:
And as explained, these are Office of the Inspector General reports that do affect how veterans receive care.

[00:19:16] Speaker 00:
For example, if the VA makes an incorrect finding, then the organization will divert resources towards solving a problem that may not, in fact, be there.

[00:19:26] Speaker 00:
Alexandria Community Assessment Program report, she made an incorrect finding regarding biopsy notifications.

[00:19:35] Speaker 00:
Also, although my opposing counsel testified that Ms.

[00:19:38] Speaker 00:
Kincaid would correct templates, she in fact testified at 1137 of the Joint Appendix that she did not correct the templates.

[00:19:46] Speaker 00:
And the templates are important because someone in Ms.

[00:19:48] Speaker 00:
Washburn's position is expected to use certain types of negotiated language with these providers

[00:19:54] Speaker 00:
which, so to make sure they're communicating on the same page.

[00:19:58] Speaker 00:
And so she was making, even if you assume that there may have been more or less grammatical errors had Ms.

[00:20:03] Speaker 00:
Kincaid not made this cut, there certainly were a large number of substantive errors in her work that would justify her removal.

[00:20:10] Speaker 02:
As a procedural matter, if that's the right term, can the removal be sustained only on the basis of

[00:20:21] Speaker 02:
the kinds of substantive errors you just described without any reliance on writing deficiencies?

[00:20:32] Speaker 00:
Well, there were writing deficiencies.

[00:20:34] Speaker 00:
The fact is that she would go through these databases and make incorrect findings that would lead to substantive errors in her written product.

[00:20:41] Speaker 02:
Right, and maybe I haven't made myself clear.

[00:20:45] Speaker 02:
Writing errors include typos, bad usage, bad grammar, bad punctuation, the kinds of things that

[00:20:55] Speaker 02:
people make all the time get corrected.

[00:20:58] Speaker 02:
Some of the talk in this case is about that kind of problem.

[00:21:04] Speaker 02:
There's also talk of the sort that you just spent a minute reciting about substantive errors that made the reports either useless to providers because they didn't use the correct language so that they were speaking the same language, or even worse, data problems that can produce

[00:21:23] Speaker 02:
incorrect substantive evaluations.

[00:21:26] Speaker 02:
My question is whether what I'm gonna call substantive errors, and I will include template errors in that, are sufficient to support the board's support of the removal here, even if we thought that the complaint about the writing errors were not.

[00:21:50] Speaker 00:
Yes, Your Honor, I believe so.

[00:21:51] Speaker 00:
She was removed based upon her failure to accomplish the performance standards, accomplishment of organizational goals and objectives.

[00:21:59] Speaker 00:
That was one critical performance standard she failed to meet, and she also failed to meet communication, and I think

[00:22:04] Speaker 00:
Looking at the performance standard, written products are approved by the supervisor with only minor revisions.

[00:22:10] Speaker 00:
There are only occasional substantive changes to content.

[00:22:13] Speaker 00:
I think she would fail as well on the only occasional substantive changes to content, which is what opposing counsel appears to be addressing in his argument.

[00:22:21] Speaker 02:
So was there a finding to that effect, you know, by the agency or the board or the administrative judge may know that

[00:22:29] Speaker 02:
Removal was justified even if one disregards Mr. Ross's and Ms.

[00:22:41] Speaker 02:
King's dissatisfaction with her writing.

[00:22:46] Speaker 02:
Again, by writing I mean to include only the non-substances points.

[00:22:53] Speaker 00:
Your Honor, I believe the administrative judge went through in detail regarding the nature of the errors that she made and found that she failed to perform both the accomplishment of organizational goals and objectives and the writing.

[00:23:07] Speaker 00:
This is at pages

[00:23:08] Speaker 00:
18 through 20.

[00:23:10] Speaker 02:
Right, but the decision that says I'm firing you because it's a combination of problem A and problem B is not a decision that I would fire you even if I found no more than problem A. Well, I think, Your Honor, I don't have a precise page site for Your Honor, but I believe that saying substantial evidence supports the agency's removal

[00:23:39] Speaker 00:
Certainly there was discussion about all of the errors that she made.

[00:23:43] Speaker 00:
Certainly the administrative judge discussed the fact that she had made these errors in the databases.

[00:23:48] Speaker 00:
I don't know that he made it affirmatively as an alternative holding.

[00:23:53] Speaker 00:
But he talked about, at least at page 22 of the administrative judge's decision, he talked about the fact that he routinely emphasized the importance of using the proper template.

[00:24:03] Speaker 00:
He talked about problems with the health care records.

[00:24:07] Speaker 00:
So I don't know the affirmatively said one way or the other, but I believe the administrative judge did discuss the fact that she had multiple errors and that substantial evidence, substantial probative evidence, this is page 24, supports that her performance is unacceptable for multiple critical elements.

[00:24:25] Speaker 00:
So it wasn't just the basis of the typographical errors.

[00:24:30] Speaker 00:
As well, turning to the

[00:24:37] Speaker ?:
Thank you.

[00:24:41] Speaker 00:
I believe also this is somewhat changing the fact that she was, I think somewhat Ms.

[00:24:48] Speaker 00:
Washburn's performance has, her questions have changed in terms of what she's challenging for her performance.

[00:24:55] Speaker 00:
I believe the nature of what she was challenging before the MSPB was that her standards were not sufficiently clear and she was also challenging the fact that she was challenging the Ms.

[00:25:07] Speaker 00:
Kincaid

[00:25:07] Speaker 00:
review, but it didn't get into the detail of what the other, and I don't think to the degree the appeal before the board got into the same level of detail regarding the nature of her other errors.

[00:25:18] Speaker 00:
With respect to Ms.

[00:25:20] Speaker 00:
Washburn's argument that she was not given a reasonable opportunity to perform because the agency somehow improperly changed the standards with respect to a secret negative file, the record in this case demonstrates that Mr. Ross went and took multiple steps to meet with her on a weekly basis.

[00:25:38] Speaker 00:
To explain to her, he described it as an interactive process.

[00:25:43] Speaker 00:
pardon me, in his testimony before the MSPB, what he was talking to her, that he explained the major errors and the minor errors.

[00:25:51] Speaker 00:
And the copy of all the supporting documents in the evidence file is at 217 through 375 of the Joint Appendix.

[00:26:00] Speaker 00:
Now, Mr. Ross also tested some of the documents in that binder.

[00:26:06] Speaker 00:
were the reports of contact.

[00:26:08] Speaker 00:
And as he testified at 885 of the joint appendix, those were documents that he, were a pre-printed form, that where he would make a note of the contact and what they discussed.

[00:26:19] Speaker 00:
Anything that was a factor in her removal with those reports of contact was included in her, the evidentiary binder.

[00:26:27] Speaker 00:
And those frequently, almost exactly, tracked

[00:26:31] Speaker 00:
the weekly report documents that he and Ms.

[00:26:35] Speaker 00:
Washburn worked together after they met on a nearly weekly basis.

[00:26:39] Speaker 00:
To the extent there were other documents, there were a few other reports of contact that Ms.

[00:26:44] Speaker 00:
Washburn didn't obtain until discovery because they were not factors in her removal such as the discussion about her being late.

[00:26:51] Speaker 00:
Those weren't a factor in her removal so everything that led to her removal she was given an opportunity to respond to.

[00:27:00] Speaker 00:
If the court has no further questions, we respectfully request to uphold the MSPD's decision.

[00:27:17] Speaker 01:
Regarding this secret negative final, I think the agency misses the point a little bit.

[00:27:26] Speaker 01:
She argued that, well, they didn't use all of these things to remove her.

[00:27:31] Speaker 01:
But that's not the problem with the secret negative file.

[00:27:33] Speaker 01:
The fact is, the problem is that it exists.

[00:27:36] Speaker 01:
That it was there to be used and was designed to show that she was not going to pass this performance improvement plan.

[00:27:43] Speaker 01:
And just to clarify one thing about these templates, Misty Kincaid did talk about using the correct templates on page 1131 of the Joint Appendix, where she talked about her duties

[00:28:01] Speaker 01:
Let's see.

[00:28:03] Speaker 01:
And I'm looking at lines roughly 19 through 22.

[00:28:07] Speaker 01:
So 1131.

[00:28:07] Speaker 02:
1131.

[00:28:09] Speaker 02:
Do you understand what the problem is when JA numbers are printed right over other letters and you can't read them?

[00:28:19] Speaker 02:
I have no idea where 1131 is in this document.

[00:28:24] Speaker 01:
I'm sorry, liner.

[00:28:27] Speaker 01:
I should have used a better bake stamp to create this.

[00:28:29] Speaker 02:
Well, I think I can find it.

[00:28:31] Speaker 03:
Really?

[00:28:33] Speaker 02:
Yeah, I was going to say it's on 1131, but that doesn't help.

[00:28:37] Speaker 02:
The numbers actually stick out past whatever the phone number is.

[00:28:40] Speaker 02:
Oh, OK, then I got it.

[00:28:43] Speaker 01:
Go ahead.

[00:28:44] Speaker 01:
But lines 19 through 22, I read through it to make sure that you know there's no grammar mistakes, and the structure is correct, and I'm using the correct template, that sort of thing.

[00:28:54] Speaker 05:
Wait, whose testimony is this?

[00:28:56] Speaker 01:
This is Ms.

[00:28:56] Speaker 01:
Kinkay.

[00:28:57] Speaker 01:
This is the program analyst testifying at the hearing.

[00:29:02] Speaker 01:
And then she talks about the templates that Dr. Washburn would use and submit to her for proofreading, for verification.

[00:29:12] Speaker 01:
This process was changed.

[00:29:14] Speaker 01:
Misty Kincaid was no longer allowed to see Dr. Washburn's work, and the reason Larry Ross did that was so that he could find more mistakes that he would not otherwise have seen.

[00:29:24] Speaker 03:
Well, that's one way of looking at it.

[00:29:26] Speaker 03:
As I was asking you before, it could have been simply a way of seeing if she was taking the PIP seriously.

[00:29:32] Speaker 01:
Well, Larry Ross actually testified at the hearing and said,

[00:29:37] Speaker 01:
That is the very reason that I asked to see that, to see Ms.

[00:29:40] Speaker 01:
Washburn's work before it had a chance to be edited.

[00:29:43] Speaker 01:
And that was in response to being asked, well, wouldn't you find more errors that you wouldn't see in other employees?

[00:29:48] Speaker 01:
And he said, yes.

[00:29:50] Speaker 01:
When asked if he knew about whether other employees committed these same things, he wouldn't know because it comes through Ms.

[00:29:56] Speaker 01:
Kim Kang.

[00:29:58] Speaker 01:
And he only reviewed their work after that.

[00:30:00] Speaker 01:
And the fact that he changed these procedures for the PEP to catch more mistakes that would not otherwise have been a part of her performance standards means that she was not given a meaningful opportunity to improve and so her removal must be reversed.

[00:30:29] Speaker ?:
I will report to the General Hospital tomorrow morning.