[00:00:00] Speaker 03:
It's like an ice box in here.

[00:00:05] Speaker 03:
We're trying to keep you awake.

[00:00:08] Speaker 03:
All right, we have only three argued cases before the court this morning and one submitted case.

[00:00:17] Speaker 03:
The first argued case before the court is Miskill, is that pronounced properly?

[00:00:22] Speaker 00:
Yes, ma'am.

[00:00:22] Speaker 03:
Versus SSA, Social Security Administration, Mr. Gagliardo?

[00:00:27] Speaker 01:
Yes, ma'am.

[00:00:28] Speaker 03:
You want five minutes for rebuttal.

[00:00:30] Speaker 03:
Is that correct?

[00:00:30] Speaker 03:
Correct.

[00:00:31] Speaker 03:
All right.

[00:00:31] Speaker 03:
You may begin.

[00:00:32] Speaker 01:
Thank you.

[00:00:34] Speaker 01:
Good morning, Judge O'Malley, Judge Stoles, Judge Hughes.

[00:00:38] Speaker 01:
There were two reasons for this appeal.

[00:00:40] Speaker 01:
The first is the obvious one, and that is to seek relief for Ms.

[00:00:43] Speaker 01:
Mistel.

[00:00:44] Speaker 01:
But the second one, which is equally and perhaps even more important, this appeal was brought to assure that arbitrators comply with the law.

[00:00:53] Speaker 01:
And it's well established that arbitrators must follow

[00:00:57] Speaker 01:
of the jurisprudence of the Merit System Protection Board and this court.

[00:01:03] Speaker 01:
In this particular case, we are arguing that the arbitrator's disregard of the treatment of similarly situated employees was clearly in error.

[00:01:19] Speaker 04:
Can I ask you about the stipulation that was entered into that there was an investigation ongoing?

[00:01:24] Speaker 04:
Yes.

[00:01:24] Speaker 04:
Were there any other details, or was this just,

[00:01:27] Speaker 04:
Why did you enter into such a bare-faced stipulation that doesn't tell us the facts of that investigation?

[00:01:34] Speaker 01:
It's an appropriate question, to say the least.

[00:01:38] Speaker 01:
In retrospect, I've asked myself the same question.

[00:01:41] Speaker 01:
My co-counsel, Ms.

[00:01:42] Speaker 01:
D'Agostino, and I were talking about that this morning.

[00:01:46] Speaker 01:
The short answer is that we felt that it was of little significance.

[00:01:52] Speaker 01:
The details were of little significance.

[00:01:54] Speaker 01:
that two years had passed.

[00:01:56] Speaker 04:
Well, how can that be true?

[00:01:57] Speaker 04:
I mean, I understand your point, but we don't know when the investigation occurred.

[00:02:01] Speaker 04:
If the investigation started immediately after your client's removal, then it might be more relevant that there's an investigation than if it was two years later or the like.

[00:02:12] Speaker 04:
It just seems to me very difficult for us to say, to look at the stipulation and then fault the arbitrator when you agreed that there was an investigation.

[00:02:22] Speaker 01:
The way I look at it is simply this, Your Honor.

[00:02:25] Speaker 01:
Two years have passed since the last charge defense.

[00:02:30] Speaker 01:
More than a year had passed since the agency divulged to the union on behalf of Ms.

[00:02:36] Speaker 01:
Miskell what these other employees had, in fact, done.

[00:02:39] Speaker 01:
To me, it defies credulity.

[00:02:43] Speaker 01:
And it would not even meet a substantial evidence test that two years after the fact, you say, well, we haven't decided yet.

[00:02:52] Speaker 01:
which allows the arbitrator to say, well, if you haven't decided, then they're not comparable.

[00:02:58] Speaker 01:
It's not logical.

[00:02:59] Speaker 01:
It defies credulity, as I've already said.

[00:03:02] Speaker 04:
Do you have any additional information about what's going on with those investigations?

[00:03:06] Speaker 01:
To our knowledge, and agency counsel is here as well as the Department of Justice counsel might elucidate this, but I have no knowledge that anything has ever been done about this, other than that one mention, which was mentioned, so to speak, at the 11th hour.

[00:03:21] Speaker 01:
We had no idea.

[00:03:24] Speaker 03:
So it's your position that even though the agency claimed that they didn't really know about all these discrepancies to your own client and her sister, I guess it was?

[00:03:36] Speaker 00:
Correct.

[00:03:37] Speaker 03:
Figured out what these records really showed that the mere fact that they weren't even looking at the other records and the other employees in and of itself shows a difference in treatment.

[00:03:49] Speaker 01:
It does.

[00:03:50] Speaker 01:
And it shows something else.

[00:03:51] Speaker 01:
It shows that despite the conclusory statement that this is a very serious offense, and I see a lot of... I'm union counsel.

[00:04:00] Speaker 01:
I see a lot of proposals and decisions.

[00:04:02] Speaker 01:
And I've yet to see one that says, you know, this really isn't serious, no matter what the offense might be, and regardless of what the proposed penalty is.

[00:04:10] Speaker 01:
So if we look at the facts that are induced on this record and weigh whether or not this truly is a serious offense, because that's part of the calculus,

[00:04:19] Speaker 01:
That's the agency's primary argument, that it's harmless error, because even if this is so serious, it's justified.

[00:04:27] Speaker 01:
But let's look at the facts.

[00:04:28] Speaker 01:
Mr. Schwab, who's the immediate supervisor, who was the supervisor of seven of the eight comparators, said he didn't enforce time and attendance.

[00:04:36] Speaker 01:
He didn't know whether people were filling out their time clips.

[00:04:39] Speaker 01:
He didn't look.

[00:04:40] Speaker 01:
He sat in his office.

[00:04:41] Speaker 01:
That's his testimony.

[00:04:42] Speaker 01:
It's uncontroversial.

[00:04:43] Speaker 04:
Can I ask you, those comparators, and you said he's the supervisor,

[00:04:48] Speaker 04:
Did they all work with your client in the same office or the same division?

[00:04:52] Speaker 01:
With one exception.

[00:04:53] Speaker 04:
And how big was that office?

[00:04:55] Speaker 01:
I think it was eight employees.

[00:04:56] Speaker 01:
Wait, so it's... I think that was the whole universe of employees.

[00:04:58] Speaker 04:
Essentially all of them?

[00:04:59] Speaker 01:
I'm sorry, Your Honor.

[00:05:00] Speaker 04:
It's essentially all of them.

[00:05:01] Speaker 01:
I believe that's correct.

[00:05:03] Speaker 04:
And she's in the middle of the pack.

[00:05:04] Speaker 01:
That is correct.

[00:05:05] Speaker 02:
And what was the discovery that she asked for to get those time records?

[00:05:10] Speaker 02:
Did she say,

[00:05:11] Speaker 02:
Could you give me the time records of my entire department?

[00:05:14] Speaker 02:
Or did she say, could you give me the time records of employees X, Y, and Z?

[00:05:18] Speaker 01:
No.

[00:05:21] Speaker 01:
You know, now that you say that she asked for X, Y, and Z, I'm not sure.

[00:05:24] Speaker 01:
I was going to say she asked for the whole department, rather than specified employees.

[00:05:30] Speaker 01:
But I'm not clear.

[00:05:30] Speaker 01:
Do you have no chance?

[00:05:32] Speaker 03:
Well, she ultimately got the whole department, right?

[00:05:34] Speaker 01:
She got everybody's record, yes.

[00:05:37] Speaker 01:
Yes.

[00:05:37] Speaker 01:
If I can just elucidate for one more moment on this question of seriousness.

[00:05:43] Speaker 01:
In sum, what I really think the agency and what Mr. Schwab was saying is, look, these are high-level technical people.

[00:05:50] Speaker 01:
These are highly skilled IT people.

[00:05:53] Speaker 01:
And they service, as is set out in the brief, they service both internal and external.

[00:05:59] Speaker 01:
They call them customers.

[00:06:00] Speaker 01:
I find that an odd phraseology, but they're known commonly as internal and external customers.

[00:06:06] Speaker 01:
go any number of places in order to perform their duties.

[00:06:09] Speaker 01:
It's not like they're sitting at a fixed desk, which again says something about how important is time.

[00:06:14] Speaker 01:
This is not an assembly line.

[00:06:15] Speaker 01:
This is not a receptionist.

[00:06:17] Speaker 01:
This is not a guard.

[00:06:18] Speaker 01:
People that have their presence at a particularly specified time is highly important.

[00:06:24] Speaker 01:
They go and they do their work and they're self-motivated, self-directed people.

[00:06:28] Speaker 03:
But she doesn't really dispute that there were many times where she can't establish that she was at some other location and that she was doing personal things.

[00:06:36] Speaker 01:
Yes, the record is somewhat vague in this regard.

[00:06:39] Speaker 01:
She says there were times when I would go and service an external client, but I can't tell you if on a certain date, you know, I was here or there.

[00:06:49] Speaker 02:
I thought that your appeal really was focusing on this Douglas factor in her treatment compared to others.

[00:06:55] Speaker 02:
So I don't know how this factors into that.

[00:06:59] Speaker 02:
But I have a question for you about could the arbitrator have stayed the arbitration until the results of these other investigations were found?

[00:07:07] Speaker 02:
I mean, what could the arbitrator have done in this circumstance where the investigations were ongoing?

[00:07:12] Speaker 02:
Is there anything?

[00:07:14] Speaker 01:
Well, in the abstract, I suppose the arbitrator who controls the hearing can do whatever he or she chooses to do, provided it's not contrary to law.

[00:07:25] Speaker 02:
Did you ask for a stay or anything like that?

[00:07:27] Speaker 01:
We did not ask for a stay.

[00:07:29] Speaker 01:
See, we thought, and perhaps it's, well, I'll admit it's my mistake.

[00:07:33] Speaker 01:
I thought that the stipulation was of no great consequence, that the mere fact that it was so far after the fact, that really it was a pretext

[00:07:43] Speaker 01:
Because it's really an invitation to live.

[00:07:45] Speaker 01:
I can be that bold about it.

[00:07:47] Speaker 01:
If you say, you know, all an agency would ever have to do is come in and say, you know, there are other people who are under investigation.

[00:07:53] Speaker 04:
But that's the problem with the way you stipulated to this.

[00:07:56] Speaker 04:
It doesn't give us any facts.

[00:07:58] Speaker 04:
It may be that it's a pretext.

[00:08:00] Speaker 04:
It certainly seems a little shaky given the timing.

[00:08:03] Speaker 04:
But it may have been they had some good faith reason that they didn't learn of this until your client asked for the information once they got at it to, you know,

[00:08:13] Speaker 04:
Again, a year seems like a long time, but it took some time for them to put the investigation into account.

[00:08:18] Speaker 04:
Or it may be that the investigation didn't start in 16.

[00:08:22] Speaker 04:
It may have started in 15.

[00:08:23] Speaker 04:
And so it's hard to tell whether or not the investigation was done in good faith without more details.

[00:08:34] Speaker 01:
But the arbitrator should have inquired on that.

[00:08:37] Speaker 01:
What we said in the brief is that once we raise a disparate penalty,

[00:08:41] Speaker 01:
the burden shifts to the agency to show why there's a difference.

[00:08:45] Speaker 01:
So it was their burden to show why.

[00:08:47] Speaker 01:
To answer the questions that you've just asked me.

[00:08:51] Speaker 04:
But you didn't make them prove their burden because you stipulated to an investigation.

[00:08:57] Speaker 01:
Well, again, really the investigation was done by our witness who took these records and spoon-fed the results

[00:09:09] Speaker 01:
to the agents.

[00:09:10] Speaker 01:
The investigation was done.

[00:09:12] Speaker 01:
We did it.

[00:09:13] Speaker 04:
Look, I get it.

[00:09:13] Speaker 04:
I mean, if they came up with this notion of instituting an investigation in 16, right before the arbitrator was going to decide, that's extremely problematic.

[00:09:23] Speaker 04:
But if what happened was maybe they weren't as up to speed as they should have been, but as soon as they found out that your client had requested information and they went back and looked at it, and then they started an investigation into all of these other people themselves, that seems to be

[00:09:39] Speaker 04:
good faith.

[00:09:40] Speaker 04:
And so whether or not they can be used by comparables might be up in the air.

[00:09:45] Speaker 04:
But we don't know any of that.

[00:09:46] Speaker 01:
But, see, the comparability is this.

[00:09:48] Speaker 01:
Two years after the fact and a year after the information is marshal and several months after the analysis is provided to the agency, they say, well, we still don't know what we're going to do.

[00:10:02] Speaker 01:
That's just.

[00:10:03] Speaker 02:
Do I understand the investigation of Ms.

[00:10:05] Speaker 02:
Miskell?

[00:10:06] Speaker 02:
How long did that take?

[00:10:07] Speaker 02:
Is that clear on the record?

[00:10:08] Speaker 01:
Two months, I think.

[00:10:10] Speaker 01:
Yeah, it wasn't very long.

[00:10:12] Speaker 03:
From the beginning of the investigation until the recommended discharge, it was two months.

[00:10:16] Speaker 03:
Thank you, Your Honor.

[00:10:18] Speaker 03:
But the other point is, as I understand what you're saying, is that the Douglas similarly situated factor is not simply a standalone, are you being treated differently?

[00:10:30] Speaker 03:
It goes to the whole question of how serious the offense was, because if this was a pattern and practice that the

[00:10:38] Speaker 03:
you know, management authorized, then it might not be such a serious offense.

[00:10:43] Speaker 01:
Sure.

[00:10:43] Speaker 01:
Exactly the point.

[00:10:44] Speaker 01:
Exactly the point.

[00:10:46] Speaker 01:
And we think that that is the heart of this case.

[00:10:50] Speaker 01:
I mean, you know, did we think, you know, personally, did I think when we asked for that information we're going to find out that there were all these other violations?

[00:10:56] Speaker 01:
No, I did not.

[00:10:58] Speaker 01:
I mean, I would think quite the contrary.

[00:10:59] Speaker 01:
In fact, federal supervisors are charged with certifying time and attendance records.

[00:11:05] Speaker 01:
And it's on them.

[00:11:07] Speaker 01:
when they certify and say, yes, this employee really worked as stated in this form.

[00:11:11] Speaker 01:
There's supposed to be a check and balance system.

[00:11:13] Speaker 01:
In this case, the supervisor said, I don't know.

[00:11:17] Speaker 01:
You know, he didn't say it, but if you look at the whole situation, he basically, the proper inference is, he didn't care.

[00:11:23] Speaker 01:
That's why I said they were more concerned about what got done, how well it got done by these independent professionals.

[00:11:29] Speaker 01:
then when it got done.

[00:11:30] Speaker 02:
So just to confirm the two months, I think that comes from the anonymous complaint on June 19, 2013 and then the notice of removal was August 16, 2013?

[00:11:39] Speaker 01:
Correct.

[00:11:41] Speaker 01:
If I can just address your point, I know I'm in my rebuttal time and I don't really want to use it up.

[00:11:46] Speaker 01:
The link is, the reason I was addressing the seriousness is that the agency's argument is that it's so serious that even if there's a disparate penalty, you lose.

[00:11:58] Speaker 01:
because it's harmless air.

[00:11:59] Speaker 01:
That's set out in their brief.

[00:12:00] Speaker 01:
And that's why I'm attacking this whole notion of seriousness, because I don't think this agency treated, in Ms.

[00:12:06] Speaker 01:
Miskell's case or that division's case, these time and attendance matters as seriously as they claim.

[00:12:13] Speaker 00:
OK.

[00:12:13] Speaker 00:
You save the rest of your time.

[00:12:14] Speaker 00:
I do have a little rebuttal left.

[00:12:15] Speaker 01:
Thank you, Your Honors.

[00:12:16] Speaker 01:
I appreciate it.

[00:12:43] Speaker 04:
Good morning, Your Honor.

[00:12:45] Speaker 05:
May it please the court.

[00:12:46] Speaker 04:
Do you know what's happened with the investigations?

[00:12:49] Speaker 05:
I do.

[00:12:50] Speaker 05:
Or at least I've been informed of what happened, so I can't say for certain because it's not in the record.

[00:12:56] Speaker 05:
What we do know is that the arbitrator made a decision based on the information he had.

[00:12:59] Speaker 04:
No, no, I don't care.

[00:13:00] Speaker 04:
What's the answer to what's happened with the investigation?

[00:13:02] Speaker 05:
The answer to the question is, and I think it would be helpful to lay out the timeline a little bit better.

[00:13:07] Speaker 04:
I think you should just answer the question.

[00:13:08] Speaker 05:
OK.

[00:13:09] Speaker 05:
Well, so the information that the analysis that

[00:13:14] Speaker 05:
was provided by Ms.

[00:13:15] Speaker 05:
Miskill's sister regarding the time discrepancies, was provided to the SSA leading up to the arbitration.

[00:13:21] Speaker 05:
We have the date in our brief.

[00:13:22] Speaker 05:
It's not in the record, but it's June 17, 2015.

[00:13:24] Speaker 05:
That's two months before the arbitration.

[00:13:27] Speaker 05:
So that analysis did, in fact, prompt a verification procedure by the SSA, given that it was provided through the course of litigation, through the course of this case.

[00:13:36] Speaker 04:
You're not helping yourself.

[00:13:37] Speaker 04:
I mean, this information was in your possession at the time you removed her.

[00:13:41] Speaker 04:
I just want to know what happened.

[00:13:42] Speaker 04:
Did you investigate these people?

[00:13:44] Speaker 04:
Was any adverse actions taken against any of these other people?

[00:13:48] Speaker 05:
So at the time of the arbitration, let me make it simple.

[00:13:51] Speaker 04:
This is a yes or no question.

[00:13:53] Speaker 04:
Were any adverse actions taken against any of these other people?

[00:13:58] Speaker 05:
After a supplemental investigation was done, they found a vast improvement for the period between 2000 and 2000.

[00:14:03] Speaker 04:
Is the answer no?

[00:14:05] Speaker 05:
There was counseling for two of the individuals.

[00:14:07] Speaker 05:
No one was removed.

[00:14:09] Speaker 05:
No one had anything other than counseling.

[00:14:11] Speaker 05:
There were two counselings, and that was concluded long after the investigation, or long after the arbitration had concluded.

[00:14:18] Speaker 03:
So wait, so you're saying, you fire Ms.

[00:14:22] Speaker 03:
Miskill, all these other people, some of whom had worse problems than she did, they got scared after you fire her, and maybe they get better after a couple years, and so all you do is counsel them.

[00:14:33] Speaker 03:
But that doesn't change the fact that their prior record was just as bad as hers.

[00:14:38] Speaker 05:
For the period between 2011 and 2013, what we do know is at the time of the arbitration, they hadn't had even a wine garden counseling session because that information was new to the SSA.

[00:14:48] Speaker 03:
What do you mean it's new?

[00:14:50] Speaker 03:
You guys provided the documents.

[00:14:53] Speaker 03:
I mean, you had the documents.

[00:14:54] Speaker 03:
You went and looked at the turnstiles, so you had the material.

[00:14:59] Speaker 03:
You can't say it's new.

[00:15:00] Speaker 03:
You sat on it and didn't do anything with it.

[00:15:03] Speaker 03:
You let her

[00:15:05] Speaker 03:
have to go through the whole analysis instead of doing it yourself.

[00:15:08] Speaker 03:
But it wasn't new.

[00:15:09] Speaker 05:
And I think that does raise the important question of, you know, a persuasive case could be made that SSA could have been more vigilant, you know, when this information was requested.

[00:15:17] Speaker 05:
The whole department was requesting it.

[00:15:19] Speaker 04:
I don't understand why you're talking about when this information was requested.

[00:15:22] Speaker 04:
When the deciding official made a decision on her proposed removal, he was obligated to undertake a proper Douglas Factors analysis.

[00:15:33] Speaker 04:
If he had undertaken that proper Douglas Factors Analysis and realized, ooh, we have a huge time and attendance problem here, maybe I bet, and we've also, you know, somebody else has resigned in the face of a similar thing, maybe I better look and see what my other employees are doing.

[00:15:49] Speaker 04:
He didn't do that, and he didn't, nobody apparently did that until she brought that information to your attention.

[00:15:55] Speaker 04:
How is that a proper Douglas Factors Analysis?

[00:15:58] Speaker 05:
Also, the Douglas Factors Analysis, at least according to what

[00:16:02] Speaker 05:
What's understood at the time is it's a disparate treatment analysis based on actions the agency has taken on precedent individuals.

[00:16:11] Speaker 05:
At the time, what the deciding official had was one prior instance.

[00:16:15] Speaker 05:
This individual named Lynn Hawley, who was given a Weingarten counseling session, was told that they were going to propose a removal and chose to resign.

[00:16:22] Speaker 05:
Mr. Schwab came onto the job in 2015, saw that this individual had been anonymously complained of through an OIG complaint,

[00:16:31] Speaker 05:
conducted the investigation, and then held a meeting.

[00:16:35] Speaker 03:
Do you mean he didn't do the Douglas Factor analysis that he was supposed to do?

[00:16:39] Speaker 05:
Well, he did it based on the precedent information that he had.

[00:16:42] Speaker 05:
Ultimately, when Ms.

[00:16:43] Speaker 03:
Miskill was charged... There were eight people under his charge.

[00:16:47] Speaker 03:
There were eight people, and he had records that he could access because he accessed hers.

[00:16:52] Speaker 03:
So he didn't do the analysis of all those who were in the same department.

[00:16:57] Speaker 05:
So there was an OIG complaint that came in specifically to Ms.

[00:16:59] Speaker 05:
Miskill.

[00:17:00] Speaker 05:
And so Mr. Schwab realized, OK, we should do the investigation or analysis with respect to her.

[00:17:07] Speaker 02:
But when Ms.

[00:17:07] Speaker 02:
Miskell then asked for the time entry information for everybody else in her department, and then there was no investigation of those folks for, I mean, how long did it take?

[00:17:17] Speaker 02:
I mean, between the time that the government provided the information until the time of the arbitration, how much time was there?

[00:17:25] Speaker 05:
And this is where I think that timeline would, in fact, be helpful.

[00:17:29] Speaker 05:
So Miss Miskell was removed September 28, 2013.

[00:17:35] Speaker 05:
The information was requested February, March, 2014.

[00:17:39] Speaker 05:
Then the analysis was provided to the SSA June 17, 2015.

[00:17:45] Speaker 05:
The arbitration occurred September 2, 2015.

[00:17:48] Speaker 03:
But the decision didn't come down right away.

[00:17:52] Speaker 03:
So you're saying that there was over a year

[00:17:55] Speaker 03:
even after she requested the information, where the agency did nothing.

[00:18:01] Speaker 03:
And if it took only two months to analyze her data, you're telling me that you couldn't have analyzed it even between the time she supplied it in June and the time of the arbitration?

[00:18:11] Speaker 05:
Well, what I'm saying is we're talking about an entire department that was sought.

[00:18:15] Speaker 05:
Eight people.

[00:18:17] Speaker 03:
Right.

[00:18:18] Speaker 03:
You took two months to do hers.

[00:18:20] Speaker 03:
You're telling me you could not have done the analysis from, say,

[00:18:24] Speaker 03:
January or February until November?

[00:18:29] Speaker 05:
On June 17th, what was provided to the SSA was a verification analysis provided by Ms.

[00:18:34] Speaker 05:
Miskilski.

[00:18:35] Speaker 04:
But who cares what she provided?

[00:18:36] Speaker 04:
It's not her obligation.

[00:18:38] Speaker 04:
It's your obligation to prove that she was comparably treated to other people.

[00:18:43] Speaker 04:
And even if you didn't do it at the time of the removal, you should have been on notice when she requested information about all of her coworkers that she was looking at this.

[00:18:52] Speaker 04:
Why didn't you do the similar under analysis that she did then?

[00:18:57] Speaker 05:
Upon the request of the data.

[00:18:59] Speaker 05:
Well, you know, upon the request of the data, the parties are in litigation.

[00:19:03] Speaker 05:
And I don't intend to make excuses for this, because I think in hindsight, we could say they could have done this better.

[00:19:08] Speaker 05:
And I think we agree on that.

[00:19:09] Speaker 05:
But at the time, the parties are in litigation.

[00:19:12] Speaker 05:
An RFI was requested for an entire department.

[00:19:15] Speaker 05:
There was a reason to feel that this was just requesting information to see if they could shore up a defense.

[00:19:22] Speaker 03:
When someone is assessing whether they should fire someone based on an anonymous tip, shouldn't they look to see

[00:19:29] Speaker 03:
the extent to which these time and attendance policies were enforced throughout the department?

[00:19:35] Speaker 03:
Isn't that part of the overall seriousness analysis?

[00:19:40] Speaker 05:
So according to Chavez, what Chavez says, and this is an MSPB decision, so it certainly doesn't bind this court, but this is what's guiding, I guess, the agency at the time.

[00:19:48] Speaker 05:
They're looking at contemporaneous conduct that has been charged, and that's what Chavez says.

[00:19:52] Speaker 05:
And at the time, no one else other than a precedent employee, Ms.

[00:19:56] Speaker 05:
Lynn Holly, had been charged.

[00:19:58] Speaker 05:
So what they did as part of the sixth factor, the Douglas factor analysis, was they looked at what have we done in the past.

[00:20:04] Speaker 05:
They didn't think about what exists now that we have not yet charged.

[00:20:08] Speaker 04:
But this is not the, I mean, if this is what Chavez says, it's just wrong.

[00:20:11] Speaker 04:
But I think you're seriously over reading Chavez.

[00:20:15] Speaker 04:
I mean, it says it's backward-looking, but it doesn't only say it's backward-looking as to people who have actually been

[00:20:21] Speaker 04:
accused of misconduct.

[00:20:23] Speaker 04:
Otherwise, the first person to do it may not have any comparables, even though all of her other colleagues have done the exact same thing and not been charged.

[00:20:32] Speaker 04:
I mean, particularly if it's a policy, maybe it's not a formal policy, but if it's a practice that time in attendance is ignored, you have to look at how the policy is applied to everybody.

[00:20:45] Speaker 04:
And you didn't do it here.

[00:20:46] Speaker 04:
Let me ask you hypothetically.

[00:20:48] Speaker 04:
If instead of being the first person to be investigated,

[00:20:52] Speaker 04:
Ms.

[00:20:52] Speaker 04:
Miskell was the last person.

[00:20:54] Speaker 04:
And of all the other eight people, two of them were counseled.

[00:20:58] Speaker 04:
The rest of them had nothing done.

[00:21:00] Speaker 04:
And she was removed.

[00:21:02] Speaker 04:
No other extenuating circumstances.

[00:21:04] Speaker 04:
Would that satisfy the Douglas factors?

[00:21:07] Speaker 04:
Would her removal penalty stand up?

[00:21:11] Speaker 05:
So I guess to explain the two counselings first,

[00:21:15] Speaker 05:
That was based on a supplemental analysis, and if it's okay with the court.

[00:21:19] Speaker 03:
The reality is, though, if she was the last person, she would have gotten better, too.

[00:21:25] Speaker 03:
Right?

[00:21:25] Speaker 03:
I mean, you're saying that forget what they did as of the point of time when she was charged, because after she got charged, they started behaving themselves.

[00:21:34] Speaker 03:
Well, you know what?

[00:21:35] Speaker 03:
If she wasn't the first one charged, she probably would have started being better about her time in attendance records, too, and would have gotten nothing.

[00:21:43] Speaker 05:
It's possible.

[00:21:44] Speaker 05:
I mean, it requires a little bit of speculation to know precisely what she would have done.

[00:21:48] Speaker 05:
What we do know, though, is the supplemental analysis for these eight other comparators that ultimately resulted in the two counselings was based on more timely information, because the analysis that was provided to the SSA analyzed information based on time and attendance between 2011 and 2013.

[00:22:05] Speaker 05:
That information... Right.

[00:22:07] Speaker 03:
The relevant time frame.

[00:22:08] Speaker 05:
Right.

[00:22:08] Speaker 05:
It is the relevant time frame.

[00:22:09] Speaker 05:
But the verification analysis was provided to the SSA in 2015.

[00:22:13] Speaker 05:
According to the party's CBA, they needed more timely information to take an action.

[00:22:17] Speaker 05:
What they found between the period of 2013 and 2015 was a vast improvement in these employees' conduct.

[00:22:24] Speaker 05:
Of course.

[00:22:25] Speaker 05:
I'm sorry.

[00:22:26] Speaker 05:
That's to be expected.

[00:22:28] Speaker 04:
But this is the problem with your argument.

[00:22:30] Speaker 04:
They didn't do a proper analysis at the time of her removal.

[00:22:33] Speaker 04:
If they'd done a proper analysis and said, look, she's doing this all, but all these other people are doing the same thing,

[00:22:40] Speaker 04:
Either they remove them all, or more likely, they do some counseling or do a short three-day suspension when they're like, because you've obviously said, and they clearly did get better after somebody was made an example of, but you can't pick out one person arbitrarily and impose a harsh penalty on them when everybody else is doing the same thing.

[00:23:02] Speaker 05:
Well, the reason why that improvement had to be taken into account was... No, no, I get it.

[00:23:08] Speaker 04:
If you waited two years and then tried to remove them, one conduct that occurred that much earlier, he would be up here arguing that that was improper under the union rules, too, and he would win.

[00:23:18] Speaker 04:
He has to do that.

[00:23:20] Speaker 04:
That doesn't solve your argument as to why the agency didn't properly consider the Douglas Factors for Ms.

[00:23:26] Speaker 04:
Miskell.

[00:23:27] Speaker 05:
Also, and again, this goes back to the SSA as they understood the Douglas Factor

[00:23:32] Speaker 05:
They understood the Douglas factor to be looking backwards at precedent information.

[00:23:36] Speaker 05:
What Chavez said was, normally it's backward looking.

[00:23:38] Speaker 05:
We can look at contemporaries.

[00:23:40] Speaker 04:
Chavez also said you can look at post-discipline penalty if it's relevant, post-penalty information if it's relevant.

[00:23:48] Speaker 03:
Right.

[00:23:49] Speaker 03:
And Chavez, as Judge Hughes pointed out, did not limit it only to charged conduct.

[00:23:54] Speaker 03:
It says you look backwards, but you're supposed to look at how all employees were treated.

[00:24:02] Speaker 03:
It's employees engaged in similar conduct, not employees that got caught.

[00:24:06] Speaker 05:
Well, in that case, the specific holding was, this is our understanding, was that the two individuals were part of the same investigation.

[00:24:13] Speaker 05:
So that because that information came to the agency's attention contemporaneously or as part of the same investigation, they treated the individuals as similarly situated for that purpose.

[00:24:23] Speaker 05:
I mean, here we're looking at something different.

[00:24:24] Speaker 03:
Well, if that's the only way you get to similarly situate it under Douglas, then Chavez is wrong.

[00:24:28] Speaker 02:
Yeah, it seems to undermine the whole idea if you can just pick whoever's going to be charged, or other people who are engaging in the same conduct, and say, they're not comparable because they weren't charged.

[00:24:38] Speaker 02:
It just makes no sense.

[00:24:40] Speaker 05:
I guess what I come back to is I don't think there's any evidence in the record that shows that the SSA was being nefarious in any way to Ms.

[00:24:47] Speaker 05:
Miskell.

[00:24:47] Speaker 05:
It doesn't matter.

[00:24:51] Speaker 04:
It doesn't mean that they picked her out.

[00:24:53] Speaker 04:
It means they were negligent in their Douglas Factors because there was a group of people all acting the same way.

[00:24:59] Speaker 04:
We have evidence of that now.

[00:25:00] Speaker 04:
You don't dispute it.

[00:25:02] Speaker 04:
And they treated her differently without doing a proper investigation.

[00:25:07] Speaker 05:
Well, so I guess what we come back to is this idea that any time an employment action is taken against any individual, you have to take in the six Douglas Factor analysis and do

[00:25:20] Speaker 05:
an investigation of everyone to see whether the misconduct is, whether you have information about that occurring or not, whether it came through a specific source or not.

[00:25:30] Speaker 05:
Just before you take an action on a single individual, you have to look at the entire agency or an entire... And it's not hard when you've got the kind of records that we're talking about.

[00:25:38] Speaker 05:
I mean, I guess for this specific instance, maybe it wouldn't be that difficult, but I guess it's hard to fault, you know, the DNE or the SSA to say, you know,

[00:25:47] Speaker 05:
is this required under the law?

[00:25:49] Speaker 05:
Their understanding of the law at the time was, we look backwards.

[00:25:52] Speaker 05:
What have we done in the past for these individuals who have done the same thing in our recent history?

[00:25:58] Speaker 04:
Well, if that's your understanding, and SSA's understanding, that's just wrong.

[00:26:02] Speaker 04:
It's people who have done the same conduct, not people who have been penalized the same way.

[00:26:07] Speaker 04:
And look, I get it.

[00:26:08] Speaker 04:
I do think that there's a line here.

[00:26:12] Speaker 04:
It's not that SSA has to look across its entire

[00:26:16] Speaker 04:
you know, 100,000-person agency and say, is everybody doing time and attendance abuse treated the same way?

[00:26:22] Speaker 04:
This is the same eight-person office.

[00:26:25] Speaker 04:
You would think that a supervisor would have to treat his or her people right under his supervision the same way.

[00:26:33] Speaker 04:
It seems like it does stretch it if we impose some kind of broader search on the agency, but at least the same office.

[00:26:41] Speaker 04:
he has to have some idea or be on notice that his employees may be doing time and attendance abuse and he can't single out one of them.

[00:26:50] Speaker 05:
Um, you know, I guess if this, what this comes down to is the subjective awareness of the SSA, you know, what the record shows is that SSA didn't become aware of it until the verification.

[00:27:01] Speaker 03:
They had objective data from which they could become aware of it.

[00:27:05] Speaker 03:
It's a very different thing than saying, well, you know, you have to go out and do some,

[00:27:10] Speaker 03:
you know, deep investigation or research.

[00:27:12] Speaker 03:
It was simple, objective data that was available at that moment.

[00:27:16] Speaker 05:
And I, and to your end, and I think that's a point, that in hindsight, could they and should they have been aware of it?

[00:27:23] Speaker 05:
I think you could make that case.

[00:27:25] Speaker 04:
But can I ask you, if we vacate and remand this, do you think it's appropriate for us to tell the arbitrator to reopen the record to

[00:27:33] Speaker 04:
reconsider to consider the results of the investigation.

[00:27:36] Speaker 05:
I don't your honor and it goes back to precisely.

[00:27:39] Speaker 04:
I mean aren't you going to lose if you don't.

[00:27:41] Speaker 05:
Well because I think there's an alternative grounds to say that you know even if the six Douglas factor wasn't considered with you know to the to the court satisfaction sufficient analysis what we have is you know

[00:27:55] Speaker 05:
the conduct that wasn't denied ultimately.

[00:27:57] Speaker 05:
We have 400 instances of it.

[00:27:59] Speaker 03:
But it goes to the whole seriousness of the offense.

[00:28:03] Speaker 03:
You're trying to take that factor and make it sort of a standalone thing that has nothing to do with the ultimate punishment.

[00:28:10] Speaker 03:
But the whole point is, if this was not treated as a serious matter, and the supervisor let everybody in the department do it, and nobody else gets penalized for it, then

[00:28:23] Speaker 03:
Maybe it's not so serious that it could ever justify discharge.

[00:28:26] Speaker 05:
And I guess I'd push back against that a little bit.

[00:28:29] Speaker 05:
It's not that the supervisor was allowing it to happen.

[00:28:32] Speaker 05:
If anything, it's that the supervisor wasn't aware it was happening to such a widespread degree.

[00:28:36] Speaker 05:
Of course he was allowing it to happen.

[00:28:38] Speaker 04:
He was a bad supervisor.

[00:28:40] Speaker 04:
He wasn't paying attention to what was happening in his office.

[00:28:42] Speaker 04:
I bet he's the one that personally signed the time and attendance report.

[00:28:46] Speaker 04:
I mean, you're right.

[00:28:48] Speaker 04:
In some sense, this is a very serious offense.

[00:28:50] Speaker 04:
But if the agency didn't care about it enough to monitor people's time and attendance, then in their view, it wasn't serious.

[00:28:57] Speaker 02:
And then also, if other people who were engaged in similar or the same activity weren't penalized or weren't even charged, then similarly, it shows it wasn't serious.

[00:29:08] Speaker 05:
Well, you know, in the supervisor's defense, he did come on the job in 2015.

[00:29:12] Speaker 05:
And as soon as he was alerted to two specific instances of people engaging in these timekeeping improprieties,

[00:29:18] Speaker 05:
He did what he was supposed to do.

[00:29:20] Speaker 05:
He went through the procedural process of suggesting removal in the first instance.

[00:29:24] Speaker 05:
That person chose to resign, and then ultimately going through the grievance process and removing the second individual.

[00:29:29] Speaker 05:
When it came to- You're out of time.

[00:29:31] Speaker 00:
I understand.

[00:29:31] Speaker 05:
Well, thank you, Your Honor.

[00:29:32] Speaker 03:
I appreciate it.

[00:29:35] Speaker 03:
You have about three and a half minutes.

[00:29:37] Speaker ?:
That's it.

[00:29:43] Speaker 01:
I think it's apparent that Ms.

[00:29:44] Speaker 01:
Miskell was singled out, and turning a blind eye is not a defense.

[00:29:49] Speaker 04:
Do you think it's procedurally that we could, I mean, I know we can do what we want to do, but is it procedurally appropriate to tell the arbitrator to reopen the record?

[00:29:58] Speaker 04:
I mean, I'm a little uncomfortable because it's a lot of evidence after the fact.

[00:30:01] Speaker 04:
On the other hand, I think we need to know what the results of this investigation are.

[00:30:05] Speaker 01:
I think it would be appropriate.

[00:30:08] Speaker 01:
You know, I said at the very outset of my argument there were two reasons to take the appeal.

[00:30:12] Speaker 01:
One was to get relief from Ms.

[00:30:13] Speaker 01:
Miskell, and the other is to make sure arbitrators adhere to the law.

[00:30:17] Speaker 01:
You know, no

[00:30:18] Speaker 01:
specific criticism, but you know, I arbitrate a lot of cases and I think things get kind of loosey-goosey.

[00:30:28] Speaker 01:
If I could put it in the vernacular and I apologize for doing so.

[00:30:31] Speaker 01:
So I think instructions from the court are important.

[00:30:35] Speaker 01:
You know, in the day arbitrators always thought that their opinions should instruct the parties about their future conduct.

[00:30:42] Speaker 01:
So regardless of what the disposition of the grievance was,

[00:30:45] Speaker 01:
They would say, similar to the questions that the bench just asked counsel, why didn't you do this?

[00:30:51] Speaker 01:
Or you've got a problem because you didn't do something, even though I might ultimately rule for the party that I'm criticizing.

[00:31:02] Speaker 01:
So I don't know if there's anything more I need to say.

[00:31:05] Speaker 01:
I'm glad to answer any other questions.

[00:31:07] Speaker 03:
Thank you.

[00:31:08] Speaker 01:
Thank you, Your Honors.

[00:31:09] Speaker 01:
I appreciate the time.