[00:01:07] Speaker 01:
Mr. Miller, you reserved five minutes of your total time for rebuttal, correct?

[00:01:15] Speaker 01:
That's correct, sir.

[00:01:15] Speaker 01:
All right.

[00:01:16] Speaker 01:
Thank you, sir.

[00:01:16] Speaker 01:
You may proceed.

[00:01:17] Speaker 04:
Good morning, Your Honors.

[00:01:18] Speaker 04:
My name is Stu Miller.

[00:01:19] Speaker 04:
I'm counsel for petitioner in this case, Karen Wilson.

[00:01:24] Speaker 04:
If it please the court.

[00:01:26] Speaker 04:
Petitioner Wilson appeals to this court essentially on the basis of three assignment of errors involving a denial of due process.

[00:01:35] Speaker 04:
She alleges that on two occasions, in two separate matters, the agency, the United States Postal Service, in taking the action against her, denied her due process.

[00:01:47] Speaker 04:
And also, unfortunately, during processing before the Merit Systems Protection Board, the board itself had the effect of denying her access to the MSPB process and, accordingly, due process of law.

[00:02:00] Speaker 04:
The first assignment of error is that the appellant petitioner's length of service with the agency, which was 24 years at the time of the agency action, reducing her in grade and pay, was considered an aggravating factor by the deciding official in this case.

[00:02:17] Speaker 01:
Counselor, one of the concerns that I had when I started reading your brief is that you're asking us to make a factual determination.

[00:02:25] Speaker 01:
You're asking us to reweigh

[00:02:27] Speaker 01:
the facts that were determined below.

[00:02:29] Speaker 01:
Can you address that?

[00:02:30] Speaker 01:
Oh, which facts do you speak of, Judge Raino?

[00:02:32] Speaker 01:
Well, we're talking about how about your constitutionally sufficient notice argument?

[00:02:39] Speaker 04:
Well, in this case, Your Honor, the constitutionally deficient notice, both parties agree that the evidence to this issue was the same.

[00:02:49] Speaker 04:
The appellant was given a notice of unsatisfactory performance.

[00:02:54] Speaker 04:
And in that notice, the agency stated

[00:02:57] Speaker 04:
that she exercised poor judgment, acted unprofessionally on many occasions, and humiliated subordinate employees occasionally by making comments or yelling.

[00:03:08] Speaker 02:
And as a result of that conduct, that she had fostered the creation or the maintenance or the continuation of a hostile work environment.

[00:03:17] Speaker 04:
That's what the letter says.

[00:03:18] Speaker 02:
That's the, quote, offense.

[00:03:20] Speaker 02:
Right.

[00:03:21] Speaker 02:
Now, it says hostile work environment because you did the following event.

[00:03:27] Speaker 02:
And then they don't know.

[00:03:28] Speaker 02:
I think what the presiding judge was saying to you was that he was reading, as I did to some extent, you in essence challenging that these facts took place.

[00:03:42] Speaker 02:
Are you challenging the fact that she was found to have bullied or to have

[00:03:51] Speaker 02:
behaving in the way that behavior was found.

[00:03:54] Speaker 04:
No, what we're saying, Your Honor, is simply that the agency is required to give specific notice of the charges against you.

[00:04:02] Speaker 04:
A broad statement of you created a hostile environment is not specific.

[00:04:07] Speaker 02:
You have recited what was in the notice that said your offense for which you're being demoted, et cetera, is creation of a hostile workplace and the

[00:04:19] Speaker 02:
creation of the House of Workplaces as a result of your doing the following things.

[00:04:24] Speaker 02:
And you're saying there was insufficient information to her about what she had done?

[00:04:29] Speaker 02:
Correct.

[00:04:30] Speaker 04:
It doesn't give you any detail as to what you said, who you said it to.

[00:04:36] Speaker 02:
You're separating what I'll call the charge from the appendix that was attached to the charge, right?

[00:04:41] Speaker 02:
Correct.

[00:04:42] Speaker 02:
The document, the charge had something attached to it.

[00:04:45] Speaker 02:
Is it your argument that the attachment is legally irrelevant?

[00:04:49] Speaker 04:
No, legally insufficient.

[00:04:51] Speaker 04:
MSPP case law holds without equivocation that you can attach something to a proposal letter that further defines the charge.

[00:05:00] Speaker 02:
So now I finally understand what the presiding judge was saying.

[00:05:05] Speaker 02:
So you take this appendix to the charge, it's got a lot of stuff in it.

[00:05:09] Speaker 02:
In fact, you say it's got too much stuff in it, right?

[00:05:11] Speaker 02:
And so the question is, did the appendix give Ms.

[00:05:15] Speaker 02:
Wilson sufficient notice of the conduct that she was being charged for that creates hostile working violence?

[00:05:22] Speaker 02:
And we say no, Your Honor, simply because... When the question is, is that a fact question or a law question?

[00:05:28] Speaker 04:
No, I believe it's a law question.

[00:05:29] Speaker 04:
Fine.

[00:05:29] Speaker 04:
Whether that notice constitutes specific notice as required by 5 USC 7513.

[00:05:36] Speaker 02:
But don't you have to then look into the details, the factual details of what's in the appendix?

[00:05:43] Speaker 04:
Well, what concerns me is the finding by the administrative judge on the board that the evidence that it was sufficient

[00:05:51] Speaker 04:
is the fact of a 200-page reply to the notice with 300 pages of attachments.

[00:05:57] Speaker 04:
The petitioner contends because she did not notice.

[00:06:00] Speaker 02:
That's the reply that your client gave, right?

[00:06:02] Speaker 02:
Correct.

[00:06:03] Speaker 02:
And because she did not notice.

[00:06:04] Speaker 02:
With all this talk about this, you said it's a 200-page thing?

[00:06:09] Speaker 02:
Correct.

[00:06:10] Speaker 02:
I can't find that.

[00:06:11] Speaker 02:
We called for the record and got the record for your response.

[00:06:16] Speaker 02:
And the response that you filed was like about six or seven pages.

[00:06:20] Speaker 02:
It was actually right.

[00:06:22] Speaker 04:
No, her response to the agency at the agency level was indeed, I don't think there's any excuse, 200 pages long.

[00:06:29] Speaker 02:
No, no, it's not.

[00:06:30] Speaker 02:
I mean, it's a document that had a search with a letter that signed by your client was seven pages long, right?

[00:06:40] Speaker 04:
No, she responded at the proposal level with 200 pages plus 300 pages of attachments.

[00:06:48] Speaker 04:
Her response was over 500 pages long.

[00:06:50] Speaker 02:
Notice the proposal.

[00:06:54] Speaker 02:
Was file September 26, 2011?

[00:06:58] Speaker 02:
I can only tell you, Your Honor, that I'm committing to the record.

[00:07:02] Speaker 02:
Well, I can tell you recall for the entire record from the MSPB.

[00:07:06] Speaker 02:
There is no such thing as a 200 page with 300 pages attached to it.

[00:07:11] Speaker 04:
It should have been in the agency response file to the board, Your Honor.

[00:07:16] Speaker 01:
Let's go back to the notice and my original question.

[00:07:20] Speaker 01:
It seems to me that you're arguing that the deciding official

[00:07:24] Speaker 01:
made the decision on the basis of length of service as an aggravating factor.

[00:07:31] Speaker 01:
That's correct, Your Honor.

[00:07:32] Speaker 01:
That's kind of like the core of your argument.

[00:07:36] Speaker 01:
And then later, that question whether that was a deciding factor or not was retracted in a deposition.

[00:07:46] Speaker 01:
And you're arguing that it still survives that.

[00:07:49] Speaker 01:
Is that not a factual determination you're asking us to make?

[00:07:53] Speaker 01:
No, sir.

[00:07:53] Speaker 04:
I'm asking you to determine that the statement was made.

[00:07:57] Speaker 04:
It is a fact.

[00:07:59] Speaker 03:
The deciding official then submits an affidavit.

[00:08:05] Speaker 03:
And that affidavit says that she had not considered the length of Ms.

[00:08:10] Speaker 03:
Wilson's service as an aggravating factor in enhancing the penalty.

[00:08:15] Speaker 03:
And the AJ credited that as true.

[00:08:19] Speaker 04:
Well, the agency credited as true, Your Honor, without an explanation as to why.

[00:08:24] Speaker 03:
That's a question of the trial level, looking at something and saying true or false, which becomes a fact question.

[00:08:34] Speaker 04:
And this plays in with our third assumption of error, which was that the administrative judge abrogated responsibility to require the agency to respond to the motion

[00:08:44] Speaker 04:
for judgment based on the aggravating factor evidence.

[00:08:47] Speaker 04:
And therefore, the appellant was never apprised of that explanation as to what constituted the deciding official's intent.

[00:08:57] Speaker 03:
After deposition... You never saw that affidavit?

[00:09:00] Speaker 04:
No, I didn't see the affidavit, neither the appellant didn't see the affidavit until the agency mis-submitted its closing argument to which there was no responsible closings allowed.

[00:09:10] Speaker 04:
We withdrew, the appellant withdrew a request for a hearing because the administrative judge continually refused to have the agency respond as to what the deciding official meant.

[00:09:22] Speaker 04:
When the motion was filed saying this is a denial of due process using as an aggravating factor,

[00:09:28] Speaker 04:
The agency did not respond in 10 days.

[00:09:31] Speaker 04:
Consequently, appellants filed a motion requesting a decision.

[00:09:35] Speaker 04:
The administrative judge then held a conference, and the agency responded with there are disputed facts, which would negate approving the motion.

[00:09:46] Speaker 04:
But the judge did not compel them then or in writing it any time after

[00:09:50] Speaker 04:
to have the agency state what those disputed facts were, which would have been the affidavit explaining it.

[00:09:56] Speaker 01:
So we're here, and you submit the record, and you submit the breach, and you're asking us to resolve this dispute.

[00:10:03] Speaker 04:
Well, I'm asking you on behalf of the appellant to find that there was a due process violation.

[00:10:09] Speaker 04:
But in the alternative, if there is no due process violation, the case should be remanded and should be started all over with the same motions and then an adjudication if necessary.

[00:10:20] Speaker 04:
The appellant would request, however, based on this record, that if it is remanded, that it be remanded with specific instructions to go to a different judge.

[00:10:30] Speaker 01:
Let's go to the due process violation.

[00:10:32] Speaker 01:
Yes, sir.

[00:10:33] Speaker 01:
The underlying issue there is whether or not the latent service was an aggravating factor, if that was a determining factor.

[00:10:41] Speaker 04:
That was a core issue raised by the appellant, yes.

[00:10:43] Speaker 01:
That was the basis for the motion.

[00:10:45] Speaker 01:
So you're asking us to find that it was, that the AJ did

[00:10:50] Speaker 01:
make a decision, or rather that the decision below was based on the length of service as an aggravating factor.

[00:10:58] Speaker 04:
The administrative judge said she believed the deciding official's explanation, and she did so without reading it.

[00:11:05] Speaker 04:
She didn't explain it, and the board invented an explanation.

[00:11:10] Speaker 02:
Aren't you simply saying that you don't believe that the credibility explanation flies?

[00:11:15] Speaker 02:
There's no rationale for it.

[00:11:17] Speaker 04:
There is no credibility determination other than I believe it.

[00:11:19] Speaker 02:
It's just a matter of saying, I mean, so we know what the record says.

[00:11:23] Speaker 02:
The original deposition says, I considered her service to be an aggravating factor, period.

[00:11:29] Speaker 02:
Correct.

[00:11:29] Speaker 02:
And then later on, there's the affidavit that comes in that's in the full record.

[00:11:33] Speaker 02:
It's long, eight pages long.

[00:11:36] Speaker 02:
And she says, no, I only considered it for credibility.

[00:11:41] Speaker 02:
She said, I concluded the due to Wilson's length of service

[00:11:46] Speaker 02:
In addition to her position and her experience looking into HWE claims, when Wilson denied exercising court judgment, denied being unprofessional, blamed others, she was not credible.

[00:12:01] Speaker 02:
Right?

[00:12:01] Speaker 04:
Correct.

[00:12:02] Speaker 04:
That's her explanation.

[00:12:03] Speaker 02:
Now, I think what your argument to us is that the AJ made a mistake to accept the subsequent affidavit because it's irrational.

[00:12:15] Speaker 04:
Correct.

[00:12:16] Speaker 04:
If you look at the context of the question that she answered, I considered it an aggravating factor.

[00:12:22] Speaker 04:
You could see the subject was penalties selection.

[00:12:24] Speaker 02:
So the whole basis for credibility.

[00:12:29] Speaker 02:
So what the Johnson was saying later in her affidavit is she should have known that using poor judgment, she should have known that berating staff and otherwise would create a hostile working bar.

[00:12:44] Speaker 02:
Therefore, I find her incredible.

[00:12:46] Speaker 04:
What's important here, Your Honor, is that if that affidavit were introduced in response to the motion for judgment, then the appellant could have prepared to adjudicate that at a hearing by calling witnesses or cross-examining Ms.

[00:13:01] Speaker 04:
Johnson on that matter.

[00:13:03] Speaker 04:
But we did not see that affidavit until closing submissions, which closed the record and no response was forthcoming.

[00:13:10] Speaker 01:
You're into your rebuttal time and I'll restore you back to your five minutes.

[00:13:15] Speaker 01:
Okay.

[00:13:15] Speaker 01:
Thank you, sir.

[00:13:20] Speaker 01:
Mr. Yale.

[00:13:22] Speaker 00:
May it please the court.

[00:13:23] Speaker 00:
Nathaniel Yale on behalf of the United States Postal Service.

[00:13:27] Speaker 02:
Can I ask you a question about the affidavit we've just been talking about?

[00:13:31] Speaker 02:
Yes.

[00:13:32] Speaker 02:
Elizabeth Johnson's affidavit.

[00:13:34] Speaker 02:
Let's just assume, I know the government doesn't like assumptions, but let's assume that the affidavit had never been put in the record and that all that we had in this case was testimony from the deciding official that she had considered the length of service to be an aggravating factor.

[00:13:51] Speaker 02:
What would be the right result?

[00:13:53] Speaker 02:
What happens if that's what the record shows?

[00:13:56] Speaker 00:
I don't think the analysis is really as simple as that.

[00:13:59] Speaker 02:
I mean, I think... I'm going to ask you a question.

[00:14:01] Speaker 02:
Can you answer it?

[00:14:02] Speaker 02:
Well, I think the analysis, you would first have to look at the letter decision, which is at J. I'm just asking you, assume that the deciding official says, I take your private service against you as an aggravating factor.

[00:14:19] Speaker 02:
Is that lawful or unlawful?

[00:14:23] Speaker 00:
That particular statement would not be lawful.

[00:14:26] Speaker 00:
But again, I mean, I think as we mentioned in our briefs at the deposition,

[00:14:31] Speaker 02:
It seems apparent that the deciding officials... So if I were to decide that the credibility explanation doesn't hold water, if I were to get rid of the subsequent affidavit, then all I would have left in the record was the taking for aggravating purposes, and you say that would have been legally impermissible.

[00:14:56] Speaker 00:
Well, that's not all that you would have.

[00:14:58] Speaker 00:
You would also have the letter decision, which JA20, which specifically mentions the fact that the years of services being looked at as a mitigating factor and not an aggravating factor.

[00:15:11] Speaker 00:
So just based upon the record, I don't think just the deposition testimony, frankly, alone would be sufficient.

[00:15:17] Speaker 02:
Where in the record is this previous information about taking it as a positive factor?

[00:15:23] Speaker 00:
It's JA20, the letter decision.

[00:15:26] Speaker 03:
Paragraph 820.

[00:15:42] Speaker 02:
Two minutes.

[00:15:51] Speaker 00:
20 you say?

[00:15:54] Speaker 00:
0020.

[00:15:56] Speaker 00:
And again, I would also stress as we laid out in our briefs that certainly the question was asked and answer was given, but the deposition stopped shortly thereafter.

[00:16:16] Speaker 00:
And again, there was the declaration which was submitted before the

[00:16:25] Speaker 00:
close of the record, but also if Ms.

[00:16:28] Speaker 00:
Wilson had not waived her hearing, she would have had an opportunity to have all these issues aired at the hearing.

[00:16:36] Speaker 00:
And so we certainly think that based upon those three pieces of evidence, the letter decision, the deposition transcript, as well as the declaration, that what the judge was looking at was

[00:16:54] Speaker 00:
the fact of whether or not the deciding official actually considered years of service as an aggravating factor.

[00:17:00] Speaker 00:
We certainly don't think there's enough in the record to suggest that there should be some sort of reweighing of that evidence.

[00:17:10] Speaker 00:
And so we think Ms.

[00:17:12] Speaker 00:
Wilson's argument falls apart at that point.

[00:17:16] Speaker 00:
We'd also like to address

[00:17:19] Speaker 00:
the notice argument.

[00:17:22] Speaker 02:
Talk about the length of service and credibility.

[00:17:24] Speaker 02:
What's the rationale underneath Johnson saying, I take your length of service to mean you're not credible?

[00:17:36] Speaker 02:
Just run me through a few sentences of how that explanation works out.

[00:17:41] Speaker 00:
Sure.

[00:17:42] Speaker 00:
Well, I think what we'd be pointing to is that

[00:17:46] Speaker 00:
J.A.

[00:17:47] Speaker 00:
1598, which is the declaration.

[00:17:49] Speaker 02:
She specifically... This is Johnson's declaration?

[00:17:56] Speaker 00:
Correct.

[00:17:57] Speaker 00:
Johnson's declaration on J.A.

[00:17:59] Speaker 00:
1598 and 1599.

[00:18:02] Speaker 00:
She specifically stated, when Wilson denied exercising poor judgment, denied being unprofessional... Sorry.

[00:18:08] Speaker 00:
It's J.A.

[00:18:09] Speaker 00:
1598 to 99, paragraph... 1598.

[00:18:13] Speaker 00:
Yeah.

[00:18:14] Speaker 00:
Paragraph 23 going on to...

[00:18:16] Speaker 00:
1599.

[00:18:17] Speaker 00:
So what's the notion?

[00:18:25] Speaker 02:
The notion is the longer you serve, the more honest you're supposed to be?

[00:18:29] Speaker 00:
That's not it.

[00:18:31] Speaker 00:
That's not it.

[00:18:32] Speaker 02:
I mean, to put this into context, the longer you serve, the more you're supposed to know what constitutes bad behavior in the workplace.

[00:18:40] Speaker 00:
Well, certainly in her position, she's the director of human resources.

[00:18:45] Speaker 02:
I understand that, but I mean, what's the length of service got to do with credibility in this case?

[00:18:52] Speaker 02:
Well, as the director of human... She's denying that she did things, right?

[00:18:57] Speaker 02:
She's denying that she threatened people, she abused people, she's denying that she was a tough boss or whatever, right?

[00:19:07] Speaker 00:
Correct.

[00:19:08] Speaker 02:
And so the credibility goes, does the credibility go to whether she was telling the truth about those things?

[00:19:15] Speaker 02:
Correct.

[00:19:16] Speaker 02:
But the longer you serve, the more honest you're supposed to be.

[00:19:21] Speaker 00:
We don't think it's simply the longer you serve, the more honest you're supposed to be.

[00:19:24] Speaker 00:
What is it?

[00:19:25] Speaker 00:
I think it's laid out in paragraph 23 that as the Director of Human Resources, when she's providing arguments that she must hear all the time as the Director of Human Resources, it was

[00:19:39] Speaker 00:
Um, you know, it weighed against her credibility because after this specifically, why would it weigh against your credit?

[00:19:47] Speaker 02:
So I'm a judge.

[00:19:51] Speaker 02:
How, how would this affect the credibility?

[00:19:55] Speaker 00:
Well, there's a long list of facts, including in the 68 page attachment.

[00:20:01] Speaker 00:
Um, some of those certainly go to exercising court judgment in her response.

[00:20:05] Speaker 00:
For example, she indicated that, you know, she

[00:20:09] Speaker 00:
She denied most of those.

[00:20:10] Speaker 00:
She blamed others.

[00:20:12] Speaker 02:
I understand there's a debate here about why not she was telling the truth when she said, I didn't do this.

[00:20:19] Speaker 02:
And there were other people said, yes, you did do it.

[00:20:21] Speaker 02:
And so the AJ believed the other people.

[00:20:23] Speaker 02:
Yes, you did do it.

[00:20:26] Speaker 02:
But then what I'm saying to myself, I can't, when she's looking at length of service, she says, oh, the length of service, your length of service causes me not to believe you.

[00:20:37] Speaker 02:
Why?

[00:20:39] Speaker 02:
Well, I mean, certainly... You have to explain it, because otherwise it's irrational.

[00:20:44] Speaker 02:
And if it's irrational, it can't stand.

[00:20:47] Speaker 00:
Well, again, going back to paragraph 23, I think that... Try it again.

[00:20:54] Speaker 00:
Well, the statement... Let me try it for you.

[00:20:56] Speaker 03:
Okay.

[00:20:57] Speaker 03:
Isn't what you're saying that if you've been around the block, and around the block, and around the block enough times, that you're able to recognize what poor judgment is?

[00:21:09] Speaker 03:
because you're the HR director, and you've been penalizing people for poor judgment for that whole time.

[00:21:16] Speaker 03:
And assuming that the facts are the facts as to what occurred, that you yelled at somebody, that you threw them out of your office, that you told them you'd never talk to them again, the things that are alleged, that somebody with a lot of experience is more able to recognize that as poor judgment than somebody with very little experience.

[00:21:36] Speaker 03:
Do I synopsize it for you?

[00:21:38] Speaker 00:
Correct, Your Honor.

[00:21:39] Speaker 01:
That's... Let me add to that.

[00:21:41] Speaker 01:
I mean, in paragraph 23 at the very end, she's arguing, and this is the explanation as to why length of service affects credibility, is she notes that Wilson says at the end of the day, I was just following supervisor's orders.

[00:21:58] Speaker 00:
Correct.

[00:21:58] Speaker 01:
That is one argument that... So she worked for 20 years in a federal agency.

[00:22:05] Speaker 01:
Is it reasonable to say, I've been following supervisor's orders to create a hostile work environment?

[00:22:12] Speaker 00:
No, Your Honor.

[00:22:12] Speaker 00:
It's certainly not reasonable.

[00:22:14] Speaker 00:
And that's certainly why we are pointing out in context why her position as human resources director certainly goes to her credibility in this instance.

[00:22:27] Speaker 00:
We certainly think when you weigh the three essentially pieces of evidence here, it certainly wasn't irrational for

[00:22:35] Speaker 00:
um, you know, the, um, the board to find that, um, Ms.

[00:22:39] Speaker 00:
Johnson did not consider years of service as an aggregating factor.

[00:22:43] Speaker 02:
Um, we'd also like to address- Can you try me again about that page I was worried about earlier?

[00:22:48] Speaker 02:
I couldn't find it.

[00:22:49] Speaker 02:
It's in volume one or volume two.

[00:22:50] Speaker 02:
This is the evidence that they considered prior service in her favor.

[00:22:55] Speaker 00:
I'm not sure if volumes, Your Honor, and the joint appendix- Didn't work volume.

[00:23:01] Speaker 00:
Page 20.

[00:23:02] Speaker 02:
Page 20.

[00:23:07] Speaker 02:
Thank you.

[00:23:10] Speaker 02:
Okay, thank you.

[00:23:15] Speaker 00:
We'd also like to address the issue of the hearing that Ms.

[00:23:21] Speaker 00:
Wilson's counsel brought up.

[00:23:24] Speaker 00:
We would certainly direct you to JA 1233, which is the waiver document.

[00:23:32] Speaker 00:
We certainly do not

[00:23:35] Speaker 00:
There certainly is no conditional language within that document.

[00:23:39] Speaker 00:
And so we certainly do not believe that the board was irrational in reading through this document, seeing that there is no conditional language and finding that this was an unconditional waiver.

[00:23:55] Speaker 00:
Now, certainly that was a decision that council made.

[00:23:57] Speaker 00:
They did not have to make that decision.

[00:24:00] Speaker 00:
If we proceeded forward without that, there would have been a hearing on these issues.

[00:24:05] Speaker 00:
But certainly we don't think it's irrational for the board to look at this unconditional document and find that it affected a complete waiver.

[00:24:15] Speaker 00:
And we'd also like to address the notice argument as well.

[00:24:21] Speaker 00:
I think we had looked at the notice itself.

[00:24:25] Speaker 00:
A few things to point out.

[00:24:27] Speaker 00:
We're talking about one charge, unsatisfactory performance, and one specification.

[00:24:32] Speaker 00:
The notice being at JA23, we certainly think that that notice combined with the attachments, the investigative report, the investigative report certainly provided a multitude of details supporting this hostile work environment claim.

[00:24:55] Speaker 00:
We would also point out that this is a hostile work environment claim.

[00:24:58] Speaker 00:
This is not simply one specific charge.

[00:25:01] Speaker 00:
um, related to one particular event.

[00:25:04] Speaker 00:
Um, it's an ongoing issue and certainly, um, you know, based upon the information, um, in, in that, uh, attached report, we think that, um, there was no constitutional due process, um, issue.

[00:25:21] Speaker 02:
Incidentally on the plus factor, you know, I was having trouble finding that in the record.

[00:25:26] Speaker 02:
I don't think it works for you.

[00:25:28] Speaker 02:
It says, as a long tenured postal service employee, I haven't considered your length of service as well as your discipline for your history.

[00:25:35] Speaker 02:
It doesn't say I've considered it positively.

[00:25:38] Speaker 02:
It goes on to say at the end, this is not helping you.

[00:25:42] Speaker 02:
This is strictly true, given that your experience should have resulted in a heightened awareness, yada, yada, yada.

[00:25:50] Speaker 02:
And we know when she testified as to how did she use prior service, it was against her.

[00:25:55] Speaker 02:
Well, I don't see how you can say paragraph three is weighing her prior experience in a positive way.

[00:26:03] Speaker 00:
Well, it's looking into whether or not it's positive or not.

[00:26:07] Speaker 00:
At the end of the day, the deciding official found out it was not sufficient to mitigate, but it's also not saying it's also not going the other way.

[00:26:16] Speaker 00:
It's looking at it as a mitigating factor and saying, looking at this as a whole, it's not sufficient to mitigate, but it's not doing the opposite and going

[00:26:26] Speaker 00:
pushing the pendulum the other way.

[00:26:27] Speaker 03:
The paragraph says is that they represent inadequate justification.

[00:26:31] Speaker 03:
But it says by negative, pregnant, or whatever, it's saying that it is some justification.

[00:26:42] Speaker 01:
Any other questions?

[00:26:46] Speaker 01:
No.

[00:26:46] Speaker 01:
Thank you.

[00:26:57] Speaker 04:
Your Honor, as a former administrative judge of the MSPB myself, I am well aware of the finality of withdrawing a request for a hearing in an MSPB test.

[00:27:09] Speaker 04:
The hearing withdrawal here was not taken or made likely.

[00:27:14] Speaker 04:
And indeed, there was ample explanation in that withdrawal as to why the withdrawal was being made.

[00:27:20] Speaker 04:
It explains that the judge had refused and had abrogated her responsibility to compel

[00:27:27] Speaker 04:
the disputed facts being argued by the agency as the counter to the motion.

[00:27:33] Speaker 01:
Why would you withdraw then and why would you want to make this argument at a hearing?

[00:27:39] Speaker 04:
Because I did not want to subject my client to, as I used the phrase in that withdrawal, to litigation by ambush.

[00:27:46] Speaker 04:
If we had gone to the hearing, the first we would have heard of the deciding official's explanation that this was a credibility statement, the aggravating factor.

[00:27:56] Speaker 04:
Comment would have been during her direct testimony.

[00:27:59] Speaker 04:
And then I would have been forced to cross-examine her instantaneously

[00:28:03] Speaker 04:
without preparation and without full warning.

[00:28:06] Speaker 04:
That is not the hallmark of the MSBV process.

[00:28:08] Speaker 01:
This kind of indicates to me that this was litigation strategy on their part.

[00:28:13] Speaker 04:
This was not a strategy.

[00:28:14] Speaker 04:
It was a protection of my client's rights because I believe she was being denied those rights.

[00:28:19] Speaker 04:
The MSBV practice, as I've alluded to, has prided itself over the years on guaranteeing due process.

[00:28:26] Speaker 04:
Here I believe and still believe that my client was being denied that process.

[00:28:31] Speaker 04:
and would have had to litigate an issue she had no forewarning of, which is anathema to MSPB process.

[00:28:38] Speaker 04:
The MSPB prides itself on disclosure in advance so both parties can adequately prepare.

[00:28:44] Speaker 04:
Here, that was missing.

[00:28:47] Speaker 04:
I would also comment about the deciding official's testimony at the deposition.

[00:28:52] Speaker 04:
This is a high-ranking postal employee, an intelligent woman.

[00:28:56] Speaker 04:
The questions leading up to her statement were about penalty.

[00:29:00] Speaker 04:
At no time was the phrase aggravating factor used.

[00:29:04] Speaker 04:
She came up with that all on her own in her answer to the question.

[00:29:07] Speaker 04:
So you saw that her prior service wasn't helping her.

[00:29:12] Speaker 04:
And she wrote it was an aggravating factor.

[00:29:14] Speaker 04:
That's what she said.

[00:29:16] Speaker 04:
And I stopped the deposition at that point because that was a fatal comment in my view.

[00:29:21] Speaker 04:
That had violated the law as the government admitted, a statement by itself

[00:29:26] Speaker 04:
It's an aggravating factor.

[00:29:28] Speaker 04:
It is a due process violation.

[00:29:30] Speaker 04:
So I stopped the deposition.

[00:29:31] Speaker 04:
I needed nothing more.

[00:29:33] Speaker 04:
The agency had an opportunity to explain it.

[00:29:36] Speaker 03:
And you wanted nothing more.

[00:29:38] Speaker 04:
I won't have to deny that.

[00:29:41] Speaker 04:
But the agency attorney was asked if she had any questions, and she said I would reserve for trial.

[00:29:47] Speaker 04:
She could have asked the witness to explain.

[00:29:49] Speaker 04:
Instead, the explanation comes in weeks later.

[00:29:52] Speaker 04:
And the motion

[00:29:55] Speaker 04:
for judgment could very well have been denied because then it would have served as a discovery tool, which would be to get the disputed facts in response to the motion.

[00:30:06] Speaker 04:
But none of this occurred because the judge refused to make the agency respond to the motion for judgment.

[00:30:13] Speaker 04:
If there was a tactic or a strategy here, I would say the Postal Service not responding to the motion within the 10 days required by MSPB regulation, that was the tactic.

[00:30:24] Speaker 04:
That was the strategy.

[00:30:26] Speaker 04:
And the judge failed to make that response a requirement.

[00:30:29] Speaker 04:
And therefore, we withdrew the request for the hearing.

[00:30:32] Speaker 04:
But the day, the very day we came in possession of that affidavit in the agency submission,

[00:30:39] Speaker 04:
I reinstituted the request for the hearing.

[00:30:41] Speaker 04:
And I believe it was then error by the judge to not approve that request.

[00:30:46] Speaker 04:
And therefore, the appellant would ask that, firstly, that a due process violation be found, and that the agency did consider her prior service as an aggravating factor.

[00:30:56] Speaker 04:
But in the alternative, at least a remand for a hearing, at least on the due process issues, so that can be finally

[00:31:04] Speaker 04:
pulled out.

[00:31:05] Speaker 04:
And again, I would ask for a special instruction that would go to another judge who has not predetermined all of this evidence and written it up analytically.

[00:31:15] Speaker 01:
OK.

[00:31:16] Speaker 01:
Thank you.

[00:31:16] Speaker 01:
All right.

[00:31:16] Speaker 01:
Thank you very much.

[00:31:17] Speaker 01:
That concludes our argument for this hearing.