[00:00:03] Speaker 00: The next case for argument is 162668 Singh versus USPS. [00:00:46] Speaker 00: Why don't we give the other side a chance? [00:00:48] Speaker 00: No, no, no. [00:00:48] Speaker 00: You can stay. [00:00:49] Speaker 00: You can stay. [00:00:50] Speaker 00: Just a number minute. [00:00:52] Speaker 00: OK, it looks like they're ready. [00:00:53] Speaker 00: Please proceed. [00:00:55] Speaker 02: Yes, Your Honors. [00:00:56] Speaker 02: I'd like to thank you for your time today. [00:00:58] Speaker 02: I want to begin by discussing charge number two, because so much of this case hovers around how charge number two is treated. [00:01:06] Speaker 02: The first issue in charge number two is that there was a grievous error made in both the initial decision and in the appeals. [00:01:15] Speaker 02: Insofar as there's a missing Hillen analysis, there's no Hillen analysis ever performed for Maybel Gonzalez regarding whether or not she actually did or did not instruct my client to take the statement of Robin Rogers. [00:01:30] Speaker 02: This absence makes it somewhat between difficult and possible to say exactly what happened there. [00:01:38] Speaker 02: If were Hillen analysis performed, the Hillen analysis would favor my client. [00:01:46] Speaker 02: Both, so to cover the factors very quickly, both are the only relevant witnesses. [00:01:52] Speaker 02: There was no other person who was present when that order was given according to testimony of either. [00:01:58] Speaker 02: Both are in similar positions to observed. [00:02:01] Speaker 02: Both have similar qualities of character. [00:02:03] Speaker 02: Both have similar qualities of bias. [00:02:06] Speaker 02: And as to the probability or improbability, both involve either, one is an accusation that a supervisor with no history [00:02:14] Speaker 02: went and took part in what was an obvious conflict of interest in taking the statement, and the other is whether a supervisor ordered that to happen. [00:02:25] Speaker 02: The one area where they're different is the level of recollection that both of them have. [00:02:29] Speaker 02: My client recalled what was testified. [00:02:31] Speaker 02: My client said he was sent to do so. [00:02:34] Speaker 02: When Mabel Gonzalez was asked [00:02:35] Speaker 02: She did not say I didn't give that instruction. [00:02:37] Speaker 02: She did not say I didn't give that instruction. [00:02:39] Speaker 02: What she said is I don't recall giving that instruction. [00:02:41] Speaker 00: So you want us to revisit the credibility determinations made below? [00:02:45] Speaker 00: Is that what you're asking? [00:02:48] Speaker 02: I want a credibility determination of Mabel Gonzalez made. [00:02:52] Speaker 02: Whether that's by this court or whether it's by kicking that down to make a decision at one of the lower levels, that decision was never made. [00:03:00] Speaker 02: It was simply breezed past whether or not an order was ever given to begin with. [00:03:07] Speaker 00: Does that make sense? [00:03:09] Speaker 00: So what was the conclusion sustaining? [00:03:11] Speaker 00: I mean, the board sustained the second specification. [00:03:14] Speaker 02: The board sustained the second specification based only on the credibility of Robin Rogers and the credibility of Preet Singh. [00:03:22] Speaker 02: On the other hand, it did so by disregarding the issue whether Preet Singh was instructed to take the statement to begin with. [00:03:32] Speaker 02: A lot of this conflict in the second charge is whether or not [00:03:36] Speaker 02: Preet Singh was taking part in an order he had been given when he did things such as requesting that she clarify and not use pronouns he and he, which Singh her statement was regarding, as both of the individuals involved in the altercation had the same last name and the same gender. [00:03:58] Speaker 01: We can't make that credibility determination. [00:04:01] Speaker 02: I understand you can't, but on the other hand, you could send it back for credibility determination. [00:04:06] Speaker 01: Yet the decision is supported by the evidence, by the credibility determinations that they did make, by substantial evidence. [00:04:16] Speaker 01: Aren't you asking us to rule on something that just could be like harmless error, if it was error? [00:04:22] Speaker 02: I don't think that is harmless error. [00:04:25] Speaker 02: Because so much of what's relevant in a charge like that is the intent. [00:04:29] Speaker 02: Whether or not Mr. Singh's intent was to modify the statement or whether his intent was simply to fulfill an order that he had been given by Maeve L. Gonzalez is core to what happened in that charge. [00:04:42] Speaker 00: And why didn't the, this was already done below, right? [00:04:47] Speaker 00: I mean, the [00:04:49] Speaker 00: Administrative judge heard the testimony of all these parties, right? [00:04:52] Speaker 02: The administrative judge heard the testimony of all those parties, but never ruled one way or another whether or not that order was actually given. [00:05:00] Speaker 02: Simply disregarded whether or not the order was given. [00:05:04] Speaker 03: Is the order from Ms. [00:05:05] Speaker 03: Gonzalez? [00:05:06] Speaker 02: Yes, the order is from Ms. [00:05:08] Speaker 02: Gonzalez. [00:05:09] Speaker 03: Did she testify? [00:05:10] Speaker 02: She did testify. [00:05:12] Speaker 02: What she testified was that she does not remember giving that order, which is [00:05:18] Speaker 02: as close to a non-denial denial as a person can give, I will tell you that if I were in her position, even if I didn't remember exactly what orders I'd given one way or the other, I would tell you I would never make an order like that. [00:05:29] Speaker 02: That order involves ordering someone to do something and have a conflict of interest. [00:05:33] Speaker 02: Even were I not the sort of person that I was, I might have said I would never give an order like that. [00:05:39] Speaker 03: So how can it be the case that the administrative judge's determination here [00:05:49] Speaker 03: doesn't at least implicitly include a determination, a credibility determination against the version of the I got an order events that your client was presenting. [00:06:09] Speaker 02: I think that the judge, I believe the judge made a mistake. [00:06:15] Speaker 02: I believe that what the judge did was simply rule regarding [00:06:19] Speaker 02: There were so many conflicts that we pointed out in other testimony by other witnesses that the judge largely skimmed over the issue of that and simply looked at, was there sufficient basis to determine credibility for the witnesses who saw the fight? [00:06:33] Speaker 02: Was there enough credibility to decide whether or not Robin Rogers was telling the truth in her statement about the conversations that she had with Mr. Singh and his role in taking her statement? [00:06:45] Speaker 02: But the problem is that ignores that there is a motive allegation. [00:06:49] Speaker 02: I think that what happened is the judge treated this as if all actions are equivalent, regardless of motive. [00:06:56] Speaker 02: And the charge of interfering with an investigation requires an attempt to deceive, requires an attempt to prevent the investigation from moving forward. [00:07:09] Speaker 02: And that element was never discussed one way or the other. [00:07:13] Speaker 01: Well, they did find that. [00:07:15] Speaker 01: that there was interference with the preparation of the statements. [00:07:19] Speaker 02: Again, that decision was made based largely on what the statements were and based on his actions. [00:07:28] Speaker 02: I don't think the judge made a decision regarding his motive. [00:07:34] Speaker 00: Well, look at page appendix 11. [00:07:37] Speaker 00: I find that based on own admission, he engaged in improper conduct. [00:07:41] Speaker 00: I mean, he made findings about what happened. [00:07:44] Speaker 00: So what's wrong with those findings, other than you think he believed the wrong person? [00:07:52] Speaker 02: What's wrong with those findings? [00:07:56] Speaker 02: Besides the credibility issues that we've already raised under Hill and the various conflicts under different individuals, the judge did not take into account that [00:08:08] Speaker 02: his motive was not to interfere, that his motive was simply to do what he had been instructed. [00:08:15] Speaker 01: But they did find that. [00:08:16] Speaker 01: They found, again, Judge Prosleragi, the language, it's Appellant's own admission that he engaged in improper conduct. [00:08:24] Speaker 01: He attempted to alter the written record. [00:08:27] Speaker 01: But the issue is... What are you looking for? [00:08:31] Speaker 01: What more is there? [00:08:33] Speaker 02: The issue is that what he admitted to, he didn't admit to changing the substance of her statement. [00:08:38] Speaker 02: What he admitted to was making a clarification on time, whether she was using military or regular time for clarity. [00:08:46] Speaker 02: And the second issue that he admitted was that he had asked her to not use pronouns and make clear which individuals she was referring to when she said it. [00:08:56] Speaker 01: And the finding was that that was interference with the taking of the statements. [00:09:04] Speaker 02: But the question, so if he were ordered to take the statement, how could that have possibly interfered when it was solely aimed towards making the statement more clear? [00:09:16] Speaker 00: I guess I don't know why him interfering with and the finding that he pressured her into writing a statement which did not accurately capture her own observations, and instead was what the appellant believed had occurred. [00:09:31] Speaker 00: why it even matters whether or not they said, well, you should make sure we get a statement from her. [00:09:35] Speaker 00: That doesn't go to whether or not he should have gotten a state from her. [00:09:40] Speaker 00: It goes to his conduct and what he did in trying to interfere with the statement. [00:09:44] Speaker 00: So I'm not even understanding why that threshold matter is just positive of anything. [00:09:50] Speaker 00: Am I understanding you, though, that you're emphasizing the difference between whether or not he was told to go make sure she writes down her statement? [00:10:01] Speaker 02: it appeared, running short on time, and there are other issues I'd like to address. [00:10:07] Speaker 02: But again, this seemed a major issue because, again, when you're assessing his intent, which is an element to this. [00:10:19] Speaker 02: May I move forward to another issue? [00:10:23] Speaker 02: Sure. [00:10:23] Speaker 02: OK. [00:10:23] Speaker 02: Another major issue to get to is [00:10:36] Speaker 02: I'm sorry, is the mitigation of charge number one under Fousher. [00:10:43] Speaker 02: Whether or not charge number one should have been mitigated was ruled on in a capricious way. [00:10:47] Speaker 02: The judge, rather than discussing what mitigation was appropriate and whether or not mitigation would have or would have not [00:10:57] Speaker 02: still warranted dismissal based on the support of charge number two. [00:11:00] Speaker 02: What the judge instead ruled was the judge added an element to Faust's mitigation standard. [00:11:05] Speaker 02: And that element was that there was a second charge made at the same time. [00:11:09] Speaker 02: And that second charge was upheld. [00:11:11] Speaker 02: But the Faust was very clear what its standards are. [00:11:15] Speaker 02: The Faust standard is that there was no history of prior discipline, that no weapon was used, that there was an element of provocation. [00:11:26] Speaker 02: And from those, oh, and there's, yeah, no, I'm sorry, it was those three. [00:11:31] Speaker 02: The judge essentially ordered another one capriciously. [00:11:34] Speaker 02: And then, in writing the analysis, didn't say that removal was warranted simply based on charge number two. [00:11:41] Speaker 02: The judge's statement was that removal was warranted solely based on charge number one, which, again, was, this is similar to the agency's claim that voucher may not have occurred when there was a zero [00:11:54] Speaker 02: tolerance policy for violence, whether or not mitigation is appropriate, whether there's a zero tolerance policy again isn't one of those elements. [00:12:04] Speaker 02: The element is whether or not someone was reasonable and behaving as they did. [00:12:07] Speaker 02: And in this case, you have my client was yelled at by an employee who then turned around, walked away. [00:12:16] Speaker 02: My client thought the encounter was over. [00:12:19] Speaker 02: The employee then came back muttering under his breath and attacked my client. [00:12:24] Speaker 02: I still want to have some time left over for rebuttal, so. [00:12:27] Speaker 02: Sure. [00:12:29] Speaker 00: Well, let's hear from the governor. [00:12:31] Speaker 00: Ten years time. [00:12:42] Speaker 04: Good morning. [00:12:43] Speaker 04: May it please the court. [00:12:45] Speaker 04: The MSPB's decision sustaining the Postal Service's removal of Mr. Singh for improper conduct based on two specifications is supported by substantial evidence. [00:12:55] Speaker 04: I'll turn first to specification number two, since that was the subject of much discussion by my opponent. [00:13:04] Speaker 04: There's no dispute here, based on Mr. Singh's own admissions, that he injected himself into the substance of what Miss Rogers was trying to record as part of her statement. [00:13:14] Speaker 04: Mr. Singh's testimony before the administrative judge was that it was fairly benign in that he claims he was only attempting to change her use of pronouns and her recording of time. [00:13:25] Speaker 04: But Ms. [00:13:25] Speaker 04: Rogers's testimony was that his interference went far beyond that. [00:13:29] Speaker 04: She was standing over her shoulder. [00:13:31] Speaker 03: She testified. [00:13:32] Speaker 03: Can I just back up? [00:13:32] Speaker 03: You said inject and then interfere. [00:13:35] Speaker 03: Is there not a dispute about whether he was asked by his supervisor to go and [00:13:42] Speaker 03: communicate with her about what she was going to report? [00:13:47] Speaker 03: I'm trying to use as neutral terms as possible. [00:13:50] Speaker 04: Yes, Your Honor, that is correct. [00:13:51] Speaker 04: Mr. Singh's testimony was that Ms. [00:13:53] Speaker 04: Gonzalez told him to go to Ms. [00:13:55] Speaker 04: Rogers and get a written statement from her. [00:13:58] Speaker 04: Ms. [00:13:59] Speaker 04: Gonzalez's testimony before the administrative judge was that she did not recall giving Mr. Singh that instruction. [00:14:06] Speaker 04: However, she also testified importantly that, as she put it, Mr. Singh would have no business knowing [00:14:12] Speaker 04: the content of Miss Rogers' statement since he was a party to the investigation that was going to be undertaken. [00:14:20] Speaker 04: And so the administrative judge looked at that and the board itself quoted that testimony in its decision to support the administrative judge's finding that the agency had proved interference because even if Miss Gonzalez had asked Mr. Singh to collect a written statement from Miss Rogers, [00:14:39] Speaker 04: is absolutely clear that he wasn't instructed to oversee her actual writing of the statement and involve himself in the substance of what she was writing. [00:14:49] Speaker 04: And that was what the interference charge was based upon, was his involvement, as I said, injection into the substance of what Ms. [00:14:57] Speaker 04: Rogers was attempting to write, beyond simply asking her for testimony. [00:15:01] Speaker 00: So the AJ did not make a finding with respect to whether or not he was [00:15:05] Speaker 00: instructed to do something with respect to Ms. [00:15:08] Speaker 00: Rogers. [00:15:09] Speaker 04: That's correct, Your Honor, because in the board's view, that was immaterial because what he did was beyond simply going and getting a statement from Ms. [00:15:18] Speaker 04: Rogers. [00:15:19] Speaker 04: He involved himself in the substance of her statement and attempted to correct her, not as I was saying, not only her use of pronouns in time, but as Ms. [00:15:28] Speaker 04: Rogers testified, Mr. Singh also attempted to [00:15:32] Speaker 04: correct Ms. [00:15:33] Speaker 04: Rogers when she started to report that she had seen slapping going on by both individuals against each other. [00:15:39] Speaker 04: He corrected her and said, no, there was no slapping. [00:15:41] Speaker 04: And at that point, she removed herself from the room and disposed of her statement and wrote it as she believed was accurate. [00:15:50] Speaker 00: Don't you think it's relevant, though, as to whether or not he was instructed to at least talk to her, oversee, or whatever word we want to use? [00:15:58] Speaker 00: Because that goes to, I mean, he thought he had a purpose. [00:16:02] Speaker 00: He was ordered to do something with respect to getting a statement from Miss Rogers. [00:16:07] Speaker 00: Maybe he misconstrued that or maybe he had an ulterior motive. [00:16:11] Speaker 00: But isn't it relevant as to whether or not he was in fact instructed to make sure she did her statement or whatever? [00:16:19] Speaker 04: Your Honor, we don't believe it is relevant because as I mentioned a moment ago, [00:16:24] Speaker 04: If the charge of interference was based solely on Mr. Singh going to Ms. [00:16:29] Speaker 04: Rogers and saying, please prepare a statement, then perhaps it would be an issue, certainly, as to whether he was instructed to do that or not. [00:16:37] Speaker 04: But what Mr. Singh was found by the administrative judge based on the testimony from Ms. [00:16:44] Speaker 04: Rogers was that what he did went far beyond that. [00:16:46] Speaker 04: So whether he was asked or not, as Ms. [00:16:49] Speaker 04: Gonzalez testified, as a supervisor himself, Mr. Singh [00:16:53] Speaker 04: certainly should have known that he had no business involving himself in the very substance of what Miss Rogers was reporting. [00:16:59] Speaker 04: And it's also not relevant, Your Honor, to the extent that Mr. Salcedo, the deciding official, determined in his analysis that even if Specification 2 wasn't part of the case, Specification 1, the fighting itself alone [00:17:17] Speaker 04: provided substantial basis and grounds for the removal penalty. [00:17:21] Speaker 04: So even if Specification 2 were taken out of the case, Specification 1 alone would have supported the removal penalty. [00:17:30] Speaker 04: With respect to Specification 1, just briefly, Your Honor, there was testimony from multiple witnesses that what Mr. Singh did here went far beyond simply defending himself. [00:17:40] Speaker 04: Multiple witnesses testified that he was seen slapping JS himself, not simply defending himself. [00:17:46] Speaker 04: And the administrative judge specifically made credibility determinations based on the competing testimony from all of those witnesses versus Mr. Singh alone, who had a different story, and found the other witnesses to be credible. [00:18:00] Speaker 04: Regarding the penalty assessment, Mr. Singh's brief doesn't discuss the Douglas Factors, but the deciding official's decision letter is clear that he engaged in a very thorough analysis, discussing all of the Douglas Factors. [00:18:13] Speaker 04: Some of them he found to be mitigating, some of them aggravating. [00:18:16] Speaker 04: But on balance, he determined that removal was the only appropriate penalty in this case. [00:18:22] Speaker 04: The administrative judge reviewed that and found that there was substantial evidence. [00:18:27] Speaker 04: This court, on review, under the deferential standard, we maintain, at a minimum, cannot conclude that that penalty under these facts, as found by the administrative judge, was grossly disproportionate based on the events that occurred. [00:18:43] Speaker 04: Briefly, I'll also just touch on the voucher [00:18:46] Speaker 04: decision that my opponent discussed that appears to be the basis for Mr. Singh's challenge to the penalty that was assessed in this case. [00:18:56] Speaker 04: As the administrative judge found, however, the board's prior decision in the voucher case provides a series of factors that the board said may be appropriate in considering whether removal should be mitigated to a lesser penalty. [00:19:09] Speaker 04: But as the administrative judge found in this case, [00:19:13] Speaker 04: Some of those factors did not actually tip in favor of Mr. Singh because, in fact, he was involved at the outset of this incident. [00:19:24] Speaker 04: His own testimony is that JS followed him for some 300 feet across the shop floor before the fight occurred. [00:19:30] Speaker 04: During any part of that time, he could have taken steps to contact postal police as he had done on prior occasions for both JS and for other employees when he was involved in potential altercations. [00:19:42] Speaker 04: And second, as the administrative judge found, unlike in the voucher case, there was also the second specification of interference here, which made this an entirely different case, such that the rule of penalty, as the agency found, was certainly supported by the evidence. [00:20:00] Speaker 04: Unless the court has any further questions, we would ask that the court affirm the MSPB's decision. [00:20:06] Speaker ?: Thank you. [00:20:16] Speaker 02: I'd like to go back to the Fousher decision. [00:20:18] Speaker 02: The administrative judge's decisions about the factors required ignoring the underlying facts in Fousher and then making up a factual distinction later. [00:20:31] Speaker 02: The facts in Fousher, that wasn't a case where Fousher was attacked and defended himself. [00:20:37] Speaker 02: Fousher left the room after somebody who'd been harassing him for months threatened him, put down something, came back, and punched. [00:20:46] Speaker 02: the person he was sat, he started the fight. [00:20:49] Speaker 02: Whether or not Mr. Singh was just defending himself or was fighting back is irrelevant. [00:20:55] Speaker 02: Both are far less than the degree of initiation that occurred in Fousher. [00:20:59] Speaker 02: And in both of those, the degree of agitation was much, much lower in terms of what was done to Fousher. [00:21:09] Speaker 02: Fousher was aggressively and hostilly commented on, criticized. [00:21:14] Speaker 02: It was all verbal. [00:21:15] Speaker 02: there were threats of action. [00:21:16] Speaker 02: On the other hand, in this case, Mr. Singh was attacked by his underling. [00:21:24] Speaker 02: Now, the judge then makes this distinction based on the second charge that occurs at the same time. [00:21:31] Speaker 02: However, that's not one of the standards in Fausture, and Fausture does very specifically talk about the existence of prior discipline. [00:21:40] Speaker 02: Further, [00:21:41] Speaker 02: The fact that nobody decided that specification two was sufficient in and of itself to warrant termination makes whether or not there's the second specification itself a far less significant factor. [00:21:56] Speaker 02: In fact, Salcedo didn't rule, very pointedly ruled the exact opposite. [00:22:01] Speaker 02: Not that specification two was enough on its own, but the specification one was enough on its own. [00:22:06] Speaker 02: And in doing so, [00:22:07] Speaker 02: Yes, he performed a Douglas factor analysis, but in that Douglas factor analysis or secondary and additional to that Douglas factor analysis, there should have been a Fousher analysis. [00:22:18] Speaker 02: When that mistake was done and it went on to the board, the board then had an obligation to perform a Fousher analysis and didn't. [00:22:26] Speaker 02: The board instead, as I said, made up this additional factor so that it could write off Fousher. [00:22:35] Speaker 02: in doing so ignored the underlying facts of voucher and how those compare differently. [00:22:41] Speaker 02: So that is that issue. [00:22:44] Speaker 02: And again, Your Honors, the issue is not whether or not these findings were based on substantial evidence. [00:22:56] Speaker 02: We can see that there is [00:22:58] Speaker 02: evidence in all of these. [00:22:59] Speaker 02: The issue is about the capricious judgment that the judge simply ignored fundamental rights that my client has under board law. [00:23:08] Speaker 02: And in doing so, put my client in a position where he faced far more severe discipline than he should have. [00:23:15] Speaker 02: And while we respect that this court may not be in the position to establish exactly what the penalty should be mitigated to, this court certainly has the option of [00:23:26] Speaker 02: sending this back down to one of the previous bodies and say mitigation is appropriate under this set of rules to one of the bodies that made the initial determinations to begin with. [00:23:35] Speaker 02: It looks like I've only got about eight seconds left, so I'm not going to bother bringing up a third issue. [00:23:39] Speaker 00: Thank you. [00:23:39] Speaker 00: Thank you, Your Honor. [00:23:40] Speaker 02: We thank both sides of the cases that did it. [00:23:42] Speaker 02: That concludes our proceedings for this month.