[00:00:03] Speaker 05:
Okay.

[00:00:04] Speaker 05:
Good morning, everyone.

[00:00:05] Speaker 05:
The first argued case this morning is number 15, 3115, Gantt against the Social Security Administration.

[00:00:12] Speaker 05:
Mr. Corbin.

[00:00:25] Speaker 01:
Your Honor, may I please report?

[00:00:27] Speaker 01:
My name is Tom Corbin, and I represent the petitioner, Jerry Gantt.

[00:00:32] Speaker 01:
Mr. Degan is petitioning to find the decision of the American Systems Review Board regarding his removal from the federal service for performance-based reasons.

[00:00:46] Speaker 01:
It's interesting that we're here because the administrative judge has supported the note that my client appealed directly to this court.

[00:00:57] Speaker 01:
He did not ask the decision from the administrative judge.

[00:00:59] Speaker 01:
He did not appeal.

[00:01:01] Speaker 01:
the board itself.

[00:01:02] Speaker 01:
But having said that, I'd like to point the issues in this case are basically three.

[00:01:08] Speaker 01:
Mr. Gant was removed because of three critical elements in his job.

[00:01:13] Speaker 01:
Those elements were one, and by the way, he was a benefits authorizer working for the Social Security Administration in the Baltimore headquarters office.

[00:01:23] Speaker 01:
Having said that, there were four critical elements in his job.

[00:01:28] Speaker 01:
The interpersonal

[00:01:30] Speaker 01:
communication or participation, he was rated successful.

[00:01:35] Speaker 01:
But the other three, which were, one, participation, he was rated unsuccessful.

[00:01:42] Speaker 01:
Achieves business results, he was rated unsuccessful.

[00:01:46] Speaker 01:
And the one that demonstrates job knowledge was also rated as unsuccessful.

[00:01:52] Speaker 01:
He is a field minister on the basis.

[00:01:53] Speaker 02:
With respect to those three elements, the ones that you just brought out and you bring out as those being the elements that were

[00:02:00] Speaker 02:
instrumental in the decision.

[00:02:03] Speaker 02:
As I understand your argument is that there was no objective performance criteria given to Mr. Ganton.

[00:02:11] Speaker 02:
Therefore, he could not really judge how he was doing.

[00:02:14] Speaker 02:
Is that your argument?

[00:02:16] Speaker 02:
That is, yes, the core of our argument.

[00:02:18] Speaker 02:
That's the core of your argument.

[00:02:20] Speaker 02:
Well, what about the performance chart that he was given in August of 2012 at page 845

[00:02:31] Speaker 02:
There's a chart there at A49 and it lists the numbers.

[00:02:37] Speaker 02:
This is numerical or empirical data that's based on the performance.

[00:02:45] Speaker 02:
Why isn't that sufficient?

[00:02:49] Speaker 01:
I appreciate the court bringing attention to that.

[00:02:51] Speaker 01:
It's not sufficient because as my client stated consistently both when he was still employed by the agency and also when he testified,

[00:03:00] Speaker 01:
at his hearing that what is missing from this chart, because it represents the number of cases, the hours worked, but the meaningful statistics that should be there are what, as from a minimally accepted performance standard, how many cases do I have to?

[00:03:18] Speaker 02:
Well, it seems to me that in the record, and there's various points in the record, where that benchmark, I think the one that you're referring to, the goalpost, let's say,

[00:03:29] Speaker 02:
It was 10 cases a day.

[00:03:32] Speaker 02:
And then during this PAC evaluation that he went through, Mr. Iglesias, his supervisor, told him, you know, Mr. Gant, just do five.

[00:03:42] Speaker 02:
If you hit five, then we can continue with the performance and training and all.

[00:03:49] Speaker 02:
So those two numbers, 10 is what everybody has to do.

[00:03:52] Speaker 02:
And then five, in the middle of the review, just get five done.

[00:03:59] Speaker 02:
Why aren't those appropriate goalposts to shoot against in view of this data?

[00:04:09] Speaker 01:
Well, the benchmarks that His Honor is referring to, the 83% accuracy on about 25 cases per month, about five a week, was the standard coming out of training.

[00:04:22] Speaker 01:
But that standard was not carried over specifically with any specificity

[00:04:29] Speaker 01:
at doing the regular course of work.

[00:04:31] Speaker 01:
In fact, my client maintained and he testified to you that he was not given any targets.

[00:04:37] Speaker 02:
Once he became a regular... So do you disagree with me or the way I view the record that 10 was the target, the 10 average cases per day, and do you disagree with that or that Mr. Guest has told him hit five?

[00:04:52] Speaker 01:
I don't disagree, but the way it was characterized in the record is that

[00:04:56] Speaker 01:
the 10 or 12 cases that the typical benefits authorizer completed each day.

[00:05:01] Speaker 01:
That's what they typically completed.

[00:05:03] Speaker 01:
That was not the benchmark or that was not a given note.

[00:05:06] Speaker 04:
Does the benchmark have to be numerically specific?

[00:05:09] Speaker 04:
In other words, does it have to be a 10 or a 5 for an employee to understand that they should perform at least to the point of what you had to do to graduate as a trainee?

[00:05:24] Speaker 01:
As a trainee, yes, they had specific benchmarks.

[00:05:27] Speaker 01:
But in the module itself, no.

[00:05:30] Speaker 01:
And the law, Wilson and Islamic cases, says that it doesn't have to be a quantitative number specified.

[00:05:38] Speaker 01:
But it does also say that the standard has to be specific and precise enough that a general consensus can be derived.

[00:05:46] Speaker 01:
And that is the rub in this case and what my client relies on.

[00:05:49] Speaker 04:
Do you agree, though, that the case law is such that

[00:05:52] Speaker 04:
even if the standards on their face look somewhat vague or imprecise, that additional guidance that is provided can be taken into account when this court reviews those standards or when the board would review those standards.

[00:06:07] Speaker 01:
I agree with the premise, but the way it was implemented within this, within the Social Security and in particular in regard to my client, they were not.

[00:06:17] Speaker 01:
The supplementation was not.

[00:06:20] Speaker 01:
He contested that.

[00:06:21] Speaker 01:
And if you look at the various documentation that goes along with the performance appraisal and the opportunity to perform successfully and in the specific site and in the removal letter, they do not give that day-to-day guidance that my client was searching for.

[00:06:38] Speaker 04:
Well, there was no doubt that they said to him that 1.6 a day and at a low accuracy rate, that his accuracy rate and his numbers were not high enough.

[00:06:51] Speaker 04:
Right?

[00:06:52] Speaker 04:
And they said, you've got to bring them both up.

[00:06:54] Speaker 01:
Yes.

[00:06:55] Speaker 04:
So then they put him under the performance review period, and he goes down.

[00:07:00] Speaker 04:
But at minimum, he knew he had to go up.

[00:07:03] Speaker 01:
And he maintained, and I would ask the court to review in its deliberations his response letter that said, A61 through A64,

[00:07:20] Speaker 01:
in the appendix, he wrote a letter.

[00:07:23] Speaker 01:
Or he kept his own statistics, if you will, of the jobs he completed.

[00:07:27] Speaker 01:
Because what is not pointed out in the chart that was referred to earlier is that it only talked about completed cases.

[00:07:39] Speaker 05:
But you don't dispute that during this period only one to two cases were completed.

[00:07:47] Speaker 05:
What is your answer to the agency's position that irrespective of the benchmark, whether it's 5 or 10, 1 to 2 isn't close?

[00:08:02] Speaker 01:
I agree.

[00:08:03] Speaker 01:
Those numbers are not satisfactory.

[00:08:07] Speaker 01:
But if you take into account what was in my client's queue during that time, he had a lot of rework on every Saturday.

[00:08:16] Speaker 01:
the technical expert that reviewed his work, he had a lot of rework, if you will.

[00:08:24] Speaker 01:
And what he would do, he would be always completing his rework.

[00:08:27] Speaker 01:
But once he completed a rework case, it was no place for it to be monitored.

[00:08:34] Speaker 01:
There's no statistical category that's reflected in any of the agency's documents that says you completed this case.

[00:08:40] Speaker 01:
And when you completed it, they only talk about what he completed in terms of new cases.

[00:08:46] Speaker 05:
But I didn't see an argument that his load was heavier than or different from any other, and this continued over a long period.

[00:08:57] Speaker 05:
Your position is only that the benchmark they set was too high?

[00:09:07] Speaker 01:
No.

[00:09:08] Speaker 01:
In the record, the record suggests that he did ask for additional casework.

[00:09:13] Speaker 01:
There were times when he said, I don't have anything to do,

[00:09:16] Speaker 01:
please give me some additional work when he completed his rework, whatever category that involved, and any new cases.

[00:09:23] Speaker 01:
And there was some resistance or reluctance.

[00:09:27] Speaker 01:
And we're not here to argue that.

[00:09:30] Speaker 01:
But in the real world, he was not given additional cases.

[00:09:33] Speaker 01:
So he said that I cannot match the numbers, whatever they were, the magical numbers that the agency wanted me to complete because I never had enough cases in my queue.

[00:09:45] Speaker 05:
But is that your argument?

[00:09:47] Speaker 05:
I didn't see this argument that the reason he didn't do five cases was because he wasn't assigned five cases.

[00:09:54] Speaker 01:
That was in the record.

[00:09:56] Speaker 01:
That is a specific question that Her Honor is asking, but that is in the record, and that was his testimony.

[00:10:04] Speaker 04:
I don't really understand your rework argument, because part of the point is that you turn in a case

[00:10:12] Speaker 04:
that you tell us is done, and then we look at the accuracy.

[00:10:16] Speaker 04:
If the accuracy is bad, obviously that has to be fixed.

[00:10:20] Speaker 04:
But you shouldn't get credit for having then finished another case, because you're just fixing what should have been done right the first time around, right?

[00:10:29] Speaker 01:
Right, but where does Mr. Gann get credit for finishing that case whenever it was finished?

[00:10:36] Speaker 01:
If he finished it, and the court will recognize that no one in the module

[00:10:41] Speaker 01:
even the highest performance, they all had reworked.

[00:10:44] Speaker 01:
But it was an 83% accuracy was the number.

[00:10:47] Speaker 01:
So there was always rework.

[00:10:49] Speaker 01:
But how is the rework reflected?

[00:10:51] Speaker 04:
So no one's getting credit for those reworked cases to the extent that they got any rework.

[00:10:57] Speaker 04:
I'm sorry, I didn't hear you.

[00:10:58] Speaker 04:
I said no one was getting credit for their reworked cases.

[00:11:01] Speaker 01:
That's not the way I read the records, but I accept that as a counter.

[00:11:06] Speaker 04:
They just didn't have as many of them because their accuracy rate was higher.

[00:11:12] Speaker 01:
Right, but our client just came out of training, and he had proven himself.

[00:11:16] Speaker 01:
He was meeting those types of numbers, unwritten standards, if you will.

[00:11:23] Speaker 02:
What's this category here, average number of cases per day on A49, that performance chart?

[00:11:35] Speaker 01:
Well, on a per diem basis, Your Honor.

[00:11:41] Speaker 01:
I was imagining about it.

[00:11:42] Speaker 01:
That's what he was completing according to... Well, doesn't that show completion?

[00:11:49] Speaker 01:
But what is measured here, when you relate back to the first column total cases, those are all new cases.

[00:11:57] Speaker 01:
New cases.

[00:11:58] Speaker 01:
The supervisor handles you a case, and then you complete it without.

[00:12:03] Speaker 01:
And then once it gets in the cycle of reverb, somehow it gets lost.

[00:12:07] Speaker 02:
Right.

[00:12:08] Speaker 02:
But what does the average number of cases per day

[00:12:12] Speaker 02:
I thought that referred to cases completed, an average of the cases that he was completing per day.

[00:12:23] Speaker 02:
Yes, but according to... Well, then why doesn't that answer your question about completion?

[00:12:30] Speaker 02:
He gets credit.

[00:12:31] Speaker 02:
That's the credit right there.

[00:12:33] Speaker 02:
He got credit for 8-28-2012.

[00:12:35] Speaker 02:
He got credit for 2.11 cases per day.

[00:12:41] Speaker 01:
If I could refer in trying to answer the court's question to A61 and A62 and A63, there are some statistics.

[00:12:54] Speaker 01:
You can see the social security numbers have been redacted.

[00:12:57] Speaker 01:
But these are actually cases that Mr. Gant, after he saw how he was being measured and he didn't believe it was being measured specific enough or fairly enough, he started making notes on specific cases

[00:13:10] Speaker 01:
where he worked on and corrected whatever the deficiency was.

[00:13:15] Speaker 04:
So for instance, let me give you a hypothetical.

[00:13:18] Speaker 04:
I've got a law clerk and I say to the law clerk, you've got to turn around five bench memos this week.

[00:13:26] Speaker 04:
So if he gives me five bench memos or she gives me five bench memos and they're all wrong and I have to send them back.

[00:13:33] Speaker 04:
So all five come back again.

[00:13:35] Speaker 04:
So do they get credit for 10 because they fixed the first one that was wrong?

[00:13:40] Speaker 01:
No, Your Honor, they should be getting credit for five if they completed all five.

[00:13:44] Speaker 04:
So that's the problem.

[00:13:46] Speaker 04:
So he got credit the first time that he turned it in, but it was not accurate.

[00:13:50] Speaker 04:
So the fact that he has to turn it back in again shouldn't give him double credit, right?

[00:13:57] Speaker 01:
I agree with Your Honor, if the case was he's handed the case and he gets turned back,

[00:14:06] Speaker 01:
So he never completed it the first time.

[00:14:08] Speaker 01:
So when it comes back, he should get completed for one case at that time.

[00:14:12] Speaker 01:
But if he had already completed it and there was some rework, I think there's room to differ on that point.

[00:14:20] Speaker 01:
And I believe the issue is that the way the agency, the data is misleading.

[00:14:28] Speaker 01:
I would like to reserve one minute for him.

[00:14:30] Speaker 05:
OK, let's hear from the governor.

[00:14:32] Speaker 05:
Thank you, Mr. Corbin.

[00:14:42] Speaker 04:
Can we start with that factual question?

[00:14:45] Speaker 04:
Because when he turns it in the first time, does he get credit for a completion, and then they measure the accuracy and send it back?

[00:14:56] Speaker 04:
Or does he never get credit for completion?

[00:14:59] Speaker 03:
My understanding is that, may it please the court, my understanding is that he gets credit when it's completed, so that when

[00:15:10] Speaker 03:
So each social security number is a case.

[00:15:15] Speaker 03:
And so when you complete that social security number, then it gets credit for when it's completed.

[00:15:23] Speaker 03:
We didn't really focus on this because this was not raised and developed as an argument.

[00:15:33] Speaker 03:
And we can certainly.

[00:15:35] Speaker 02:
Well, it's part of his overall argument that he wasn't given any numerical

[00:15:40] Speaker 02:
benchmarks.

[00:15:41] Speaker 02:
And I think this argument on the completion rate falls within that general area.

[00:15:49] Speaker 02:
Let me ask you now, going back to this column I was pointing out to counsel for Mr. Gannon on page A49, average number of cases per day, what does that mean?

[00:16:00] Speaker 02:
Are those cases worked on or completed?

[00:16:05] Speaker 03:
Well, those are cases completed.

[00:16:08] Speaker 03:
So they're saying he completed, for example, in March, sorry, 849.

[00:16:16] Speaker 02:
Well, why doesn't it say average number of cases completed per day?

[00:16:20] Speaker 02:
I mean, how is somebody supposed to look at this column and really know what it represents?

[00:16:29] Speaker 03:
Yes, well, I think what the board said was that Mr. Gant, first he was a benefits authorizer.

[00:16:37] Speaker 03:
And the board is very important.

[00:16:39] Speaker 03:
Right at the beginning of the board's decision, it says that there's no dispute that this would be our supplemental appendix at page 2.

[00:16:52] Speaker 03:
There's no dispute that each VA benefit authorizer goes through a lengthy training class, that they do not graduate until they manage to complete 25 cases a week for five weeks.

[00:17:02] Speaker 03:
An average of five cases a day.

[00:17:05] Speaker 03:
with 83% accuracy.

[00:17:06] Speaker 03:
And the other thing is these statistics are not in dispute.

[00:17:11] Speaker 03:
Mr. Gantz acknowledges that he did not successfully perform the OPS.

[00:17:23] Speaker 03:
And the board found that there was really no

[00:17:30] Speaker 03:
The board found incredible Mr. Gant's testimony that nobody gave him guidance, that he didn't know the numbers.

[00:17:36] Speaker 03:
The board found they discussed trained benchmarks of five cases a day at 83% accuracy.

[00:17:43] Speaker 03:
And as the court pointed out earlier, focused on actually eight to 10 cases a day.

[00:17:52] Speaker 03:
Mr. Gant also knew that he needed to perform far more cases.

[00:17:58] Speaker 03:
And he admitted that he was unsuccessful during the OPS period, which is essentially a path.

[00:18:06] Speaker 03:
So the board found his performance was very poor.

[00:18:12] Speaker 03:
And these were all undisputed.

[00:18:14] Speaker 03:
And basically, it must be kept in mind that Mr. Gant performed at a rate of 20%

[00:18:25] Speaker 03:
of what is expected of a new trainee with a higher error rate.

[00:18:31] Speaker 03:
So a case a day.

[00:18:33] Speaker 04:
So I'm confused.

[00:18:36] Speaker 04:
So a case a day with say an 83% error rate.

[00:18:40] Speaker 04:
You don't close a case with an 83% error rate.

[00:18:46] Speaker 03:
No, the cases were picked up.

[00:18:50] Speaker 03:
The errors are picked up generally before a final action is taken on them.

[00:18:55] Speaker 03:
So that's why they go back into his box to correct it.

[00:19:02] Speaker 04:
Well, you've got to be measuring the error rate against the volume of cases that were turned out.

[00:19:08] Speaker 04:
I mean, you can't say you eventually get credit for closing a case when it's 100% and we're still giving you an 83% error rate.

[00:19:18] Speaker 03:
Yes.

[00:19:19] Speaker 03:
What they're saying is these and most of the errors were substantial according to the charts so that

[00:19:25] Speaker 03:
Basically, there are substantial errors or some technical errors in Mr. Gath, about a third of the cases.

[00:19:37] Speaker 03:
And they then went through.

[00:19:43] Speaker 03:
And they advised him that they give specific examples of the types of errors.

[00:19:54] Speaker 03:
And the types of errors are things such as improperly calculating the benefits owed so that it could result in an overpayment.

[00:20:07] Speaker 02:
Let me ask you a question.

[00:20:12] Speaker 02:
So let me tee off of that.

[00:20:15] Speaker 02:
In these charts, you're providing average per day figures.

[00:20:18] Speaker 02:
And you say that people completed cases.

[00:20:22] Speaker 02:
And next to that,

[00:20:23] Speaker 02:
is an accuracy rate, and they're all below 100%.

[00:20:27] Speaker 02:
So how can you be reporting completed cases in one column, and then stating that those cases are incomplete in another?

[00:20:43] Speaker 03:
Well, I'm looking at 8.59, the summary of both cases, performance summary report, and it says number of cases reviewed.

[00:20:53] Speaker 03:
So I take your point on that, your honor.

[00:20:55] Speaker 02:
Then look at A49.

[00:20:57] Speaker 02:
You said 59, I think.

[00:20:59] Speaker 02:
Are you looking at 49?

[00:21:00] Speaker 03:
I was actually looking at the OPS performance summary report on A59.

[00:21:06] Speaker 03:
There were several charts.

[00:21:09] Speaker 02:
You have a number of charts.

[00:21:10] Speaker 02:
There's one at A49.

[00:21:12] Speaker 02:
There's one at A52.

[00:21:14] Speaker 02:
And they all have these average per day.

[00:21:17] Speaker 02:
You're saying that average per day means completed.

[00:21:20] Speaker 02:
And yet, you have accuracy figures, some that are 20% or 75%.

[00:21:26] Speaker 02:
That can't be.

[00:21:27] Speaker 02:
That can't be.

[00:21:29] Speaker 02:
These figures don't represent that the 2.25 cases completed all had an accuracy rate of 25%.

[00:21:40] Speaker 02:
That doesn't make sense.

[00:21:43] Speaker 03:
Your Honor, on page A59, there's a

[00:21:48] Speaker 03:
OPS performance summary chart that provides a little more explanation.

[00:21:55] Speaker 04:
It still says cases per day.

[00:22:00] Speaker 03:
It shows the number of cases reviewed and this is during the month.

[00:22:05] Speaker 03:
So it says you reviewed 25 cases per month.

[00:22:11] Speaker 05:
So the weekly average accuracy, that is the initial mentor review of

[00:22:18] Speaker 05:
What was done during this period of performance review?

[00:22:22] Speaker 03:
I believe so, because it says numbers of cases reviewed.

[00:22:26] Speaker 03:
And it shows on page 859 of Mr. Gant's appendix, the substantial errors were eight.

[00:22:37] Speaker 03:
Technical errors, one.

[00:22:39] Speaker 03:
Total numbers of errors, 8.5.

[00:22:41] Speaker 03:
And it shows weekly hours of work.

[00:22:46] Speaker 03:
Then it shows average number of cases a day.

[00:22:49] Speaker 03:
And if you look at 25 cases in March, average number a day, 1.03, that makes sense.

[00:22:57] Speaker 03:
And this was given to Mr. Gant?

[00:22:59] Speaker 03:
This was given to Mr. Gant.

[00:23:03] Speaker 03:
Well, this is a result of the OPPS.

[00:23:05] Speaker 02:
I understand that.

[00:23:07] Speaker 02:
But I'm looking at the charts that I was directing your attention to before.

[00:23:13] Speaker 02:
are a letter that gives results, and that's addressed to Mr. Gantt.

[00:23:18] Speaker 02:
Yes.

[00:23:19] Speaker 03:
So these are, they gave him his OPS on page 49.

[00:23:27] Speaker 03:
Sorry, this is the performance assistance plan.

[00:23:32] Speaker 03:
So what they were showing him is, before they put him on performance assistance plan, this is what his output was like.

[00:23:42] Speaker 03:
than the OPS had.

[00:23:45] Speaker 02:
And then on page 51, you have a memorandum to Mr. Gantt, opportunity to perform successfully.

[00:23:55] Speaker 02:
We had there the numbers we're talking about.

[00:23:57] Speaker 02:
And that report's got both of those tables that we refer to.

[00:24:03] Speaker 02:
And then you direct us to page 59.

[00:24:06] Speaker 02:
I don't know where this comes from.

[00:24:09] Speaker 02:
It's not part of the reports.

[00:24:12] Speaker 02:
Apparently they were given to Mr. Tan.

[00:24:14] Speaker 03:
This is a report after the OPS showing what his results were, showing that his... So this is the after his performance, after the training period.

[00:24:27] Speaker 02:
Is that correct?

[00:24:28] Speaker 02:
Yes.

[00:24:28] Speaker 02:
Because he's saying that during the training period, I was not given a benchmark.

[00:24:34] Speaker 02:
And what you're telling us is you gave him the benchmark after his training, after everything was done.

[00:24:39] Speaker 02:
to give him the result of his performance.

[00:24:42] Speaker 02:
Why wasn't results like this given to him while he was in training?

[00:24:47] Speaker 03:
Well, during the OPS, they showed his case production during the PA.

[00:24:55] Speaker 03:
They also talked with him about his performance.

[00:24:58] Speaker 03:
They showed him.

[00:24:59] Speaker 03:
And it's undisputed that the numbers are undisputed.

[00:25:04] Speaker 03:
And they showed him his performance.

[00:25:08] Speaker 03:
He discussed it with him.

[00:25:10] Speaker 03:
The board found that he was fully aware of what his performance was.

[00:25:15] Speaker 03:
He was also an employee for a long time, for years, and the board found it credible that they didn't give him guidance on what his performance was, what he needed to do to improve it.

[00:25:28] Speaker 02:
Well, I may agree with you on that, but I'll tell you, I'm a little troubled by the fact that you're in the middle of a training period and this performance evaluation is at

[00:25:39] Speaker 02:
that what's missing here is really the goalpost.

[00:25:46] Speaker 02:
If you compare this to a race, you're timing people, and you're telling them you're not running fast enough, but you never tell them how fast they're supposed to run.

[00:25:56] Speaker 03:
Yes, Your Honor, just if I may make one, it's not a training period, and I'm thinking about performance improvement period.

[00:26:03] Speaker 03:
All right, performance is the same thing.

[00:26:05] Speaker 03:
I mean, it's... And the board said,

[00:26:08] Speaker 03:
The board recognized that these performance standards were not numerical.

[00:26:15] Speaker 03:
They didn't need to be.

[00:26:16] Speaker 03:
However, the board also recognized that under the circumstances, the performance was so low that there was really no dispute that this was not up to par and that he must have known that it wasn't up to par.

[00:26:37] Speaker 03:
found, as a matter of fact, that it wasn't optimal.

[00:26:41] Speaker 04:
But he did pass the basic training, right?

[00:26:43] Speaker 04:
So at one point, he was able to do the 85% accuracy with, what was it, 10 cases a day for training?

[00:26:51] Speaker 03:
It was five cases a day.

[00:26:52] Speaker 04:
Five cases a day with 85% accuracy.

[00:26:54] Speaker 04:
He was doing that during his training, right?

[00:26:57] Speaker 04:
Yes.

[00:26:58] Speaker 04:
And this is now immediately after his training.

[00:27:01] Speaker 03:
This is years after his training.

[00:27:04] Speaker 03:
OK.

[00:27:07] Speaker 03:
even discussed, well the board discussed that he knew the numerical guidelines in his own words on page SA 14 of our appendix.

[00:27:21] Speaker 03:
He's been expressing the number of cases he claimed to have been completing during training.

[00:27:34] Speaker 05:
But wasn't it agreed that the

[00:27:36] Speaker 05:
Production productivity during the training period met the standards for training?

[00:27:41] Speaker 05:
This is mysterious with such a dramatic drop afterwards.

[00:27:48] Speaker 03:
Yeah, and the board found that it was never clear why the production dropped off.

[00:27:58] Speaker 03:
And the board never answered that, but what the board said was that

[00:28:03] Speaker 03:
What is clear is the production did drop off.

[00:28:05] Speaker 03:
It was unacceptable.

[00:28:07] Speaker 03:
Mr. Gant knew it was unacceptable.

[00:28:11] Speaker 03:
And nonetheless, given what, nearly six months, didn't improve his performance.

[00:28:19] Speaker 03:
And during the last four months when he was under formal OPS, his performance went down slightly from the prior period

[00:28:32] Speaker ?:
where the PA period.

[00:28:35] Speaker 03:
So that was more of the informal period.

[00:28:36] Speaker 03:
So if they tell you you're not doing enough, and they specifically said you're not doing enough, and these are the numbers that you've been doing, and then it gets worse, there's really no argument to be made that he didn't know what he had to do.

[00:28:56] Speaker 03:
He did one thing.

[00:28:56] Speaker 03:
He had to improve beyond what he was doing.

[00:29:00] Speaker 03:
And also, they gave him guidance, and he did not meet that guidance.

[00:29:09] Speaker 03:
So under the circumstances of this case, keeping in mind he was an employee for years, and the board found he knew his performance was not up to par, and admitted that he failed the OPS, the court should sustain, should firm the board's decision in this case.

[00:29:32] Speaker 05:
Okay.

[00:29:33] Speaker 05:
Thank you, Mr. Schrodinger.

[00:29:42] Speaker 05:
Yes, Mr. Corbin, you have a minute.

[00:29:44] Speaker 01:
Thank you, Your Honor.

[00:29:48] Speaker 01:
I just have three points that I'd like to address to the Court as far as rebuttal.

[00:29:52] Speaker 01:
One, on A58 of Petitioner's Appendix, my client, and it was repeatedly stated that my client knew or acknowledged that his performance was subpar.

[00:30:03] Speaker 01:
And he never did that because all of these plans, the three plans that he put in front of him, the performance appraisal, the opportunity to perform successfully, and the other one, the removal, he refused to sign them.

[00:30:16] Speaker 01:
So it's clear that he did not acknowledge that he was performing so poor.

[00:30:23] Speaker 04:
But there's no dispute that at one point he at least was able to do the level of work that was needed to

[00:30:32] Speaker 04:
to pass out a training and that after training his performance dropped dramatically, regardless of what exactly the numbers were.

[00:30:40] Speaker 04:
It was dramatically less than the training levels, right?

[00:30:43] Speaker 01:
But not to me.

[00:30:44] Speaker 01:
My client came on board in 2009.

[00:30:47] Speaker 01:
He didn't receive an unsatisfactory performance evaluation until the one that came out in 2013.

[00:30:54] Speaker 01:
So he was performing at the level that was expected for at least two years and then

[00:31:00] Speaker 01:
Yes, there was a mark drop-off in the performance appraisal system training and he was doing better.

[00:31:06] Speaker 02:
Your opponent is saying that even assuming that he wasn't giving the numerical figures that represents the level he's supposed to be performing at, that the data show that at least beginning with August 28, 2012, the data show that Mr. Gantz's performance was dropping.

[00:31:30] Speaker 02:
And so how do I come to that?

[00:31:35] Speaker 02:
Yeah, I think any employee would look at that and know, like what I said about a racer all ago, about keeping time for a race.

[00:31:44] Speaker 02:
You may not know how fast you're supposed to run, but if every time you run, you're getting slower and slower, you know that you're not, it doesn't matter what the goal is, if you're just going slower each time.

[00:31:58] Speaker 01:
In a perfect world, I would agree with that analogy, Your Honor, but I think that this was an imperfect situation for Mr. Gannett.

[00:32:05] Speaker 01:
And in that, he was doing more than is reflected by the agency's self-serving data.

[00:32:12] Speaker 01:
And we would respectfully ask that.

[00:32:15] Speaker 01:
And I would, in fact, I would like to point you to A30 in the appendix, the administrative judge's own words.

[00:32:24] Speaker 01:
Right.

[00:32:26] Speaker 04:
But the administrative judge did say that the standards were pretty bad on their face and bag, but then went on to say that they can be fleshed out with additional guidance and then found that they had been in this particular instance.

[00:32:39] Speaker 01:
And as this court has pointed out today, there is some confusion with those fleshed out data.

[00:32:46] Speaker 01:
And for that reason, the overall standards lack the specificity that is warranted by the statute.

[00:32:54] Speaker 01:
And we would ask that.

[00:32:56] Speaker 05:
OK.

[00:32:56] Speaker 05:
There were two more points you wanted to make if you gave them quickly?

[00:32:59] Speaker 01:
Yes.

[00:33:01] Speaker 01:
Well, the one I really want to sum it up, that the guidance that he received that supplemented the actual performance standards was not sufficient.

[00:33:13] Speaker 01:
That was the other point.

[00:33:14] Speaker 05:
OK.

[00:33:15] Speaker 01:
And we would ask that this be set aside.

[00:33:17] Speaker 01:
And in case it be remanded back and my client be reinstated,

[00:33:22] Speaker 01:
and that he be awarded any benefits and back pay that he deserves.

[00:33:28] Speaker 05:
Thank you.

[00:33:28] Speaker 05:
Thank you.

[00:33:30] Speaker 05:
Thank you all.

[00:33:31] Speaker 05:
The case is taken into submission.