[00:00:04] Speaker 04: All right. [00:00:04] Speaker 04: We have four cases before the court this morning. [00:00:07] Speaker 04: The first, sorry, versus the Department of Homeland Security is case number 171064. [00:00:16] Speaker 04: I apologize. [00:00:18] Speaker 04: We have four argued cases, five cases total on the docket this morning. [00:00:23] Speaker 04: Ms. [00:00:25] Speaker 04: Elsby, you want three minutes for rebuttal? [00:00:28] Speaker ?: Yes. [00:00:28] Speaker 04: Okay. [00:00:28] Speaker 04: You may proceed. [00:00:41] Speaker 03: May it please the court. [00:00:43] Speaker 03: Rachel Elsby for the petitioner, Vaheed Esrari. [00:00:45] Speaker 03: The board's decision should be reversed because it rests on multiple legal errors and is not supported by substantial evidence. [00:00:52] Speaker 03: Specifically, the board committed legal error by not fully addressing and accounting for countervailing evidence that undermined its analysis with respect to car factor one. [00:01:02] Speaker 03: Similarly, the board committed legal error [00:01:05] Speaker 03: in its application of the law to the same analysis of car factor one. [00:01:09] Speaker 03: And because of these legal errors, its decision cannot be supported by substantial evidence. [00:01:14] Speaker 04: Do you dispute that the performance review itself automatically triggered the performance plan? [00:01:21] Speaker 03: We do. [00:01:22] Speaker 03: And we don't think that that's what the administrative judge found, and we don't think that that's what the record supports. [00:01:27] Speaker 03: The record certainly supports that the mid-year review, who's deficient in two categories in the mid-year review, [00:01:33] Speaker 03: And the handbook states that if you're deficient in even one category, you could be subject to a performance plan. [00:01:39] Speaker 03: But the administrative judge found in his decision that he would be potentially subject to that performance plan in his end year evaluation. [00:01:48] Speaker 03: So it wasn't that he was going to be put on it automatically or that there's any sort of evidence that says this is triggering a performance plan. [00:01:57] Speaker 04: Even though he wasn't just deficient, he was at a one, which is completely unacceptable. [00:02:02] Speaker 03: That's right. [00:02:03] Speaker 03: And so you would expect that they would take that action. [00:02:06] Speaker 03: But the evidence in the administrative judge's finding actually indicates that that would have come later in time, perhaps, at an end-of-year evaluation. [00:02:14] Speaker 03: I don't dispute that under what it says in the TSA handbook that you would have expected this to happen. [00:02:20] Speaker 03: But that's kind of the problem in this case, that it actually gets to the second legal error committed by the administrative judge and the board that [00:02:27] Speaker 03: The question under the Whistleblower Protection Act is not whether the agency could take certain action against an employee, but whether, in fact, they were going to take the action against the employee, and that precise action, not just any action. [00:02:42] Speaker 03: And so you have a similar problem with the suspension, whereas the SOP violations that are identified in March on the 26th and the 28th could be used to suspend an employee. [00:02:56] Speaker 03: But in fact, the evidence doesn't support that that's what the TSA was going to do. [00:03:01] Speaker 03: And if you look at the subject matter that was the subject of his second protective disclosure, you get a sense that this is a security station where there are certain things going on. [00:03:12] Speaker 03: Maybe what's in that protective disclosure was not an SOP violation. [00:03:15] Speaker 03: The administrative judge found that. [00:03:17] Speaker 03: But there's an appearance that there isn't a disciplinary enforcement going on at this security station. [00:03:25] Speaker 03: There's very little evidence as to car factor three, which would have supported the government there, in fact, as to the suspension or the IPN and the removal. [00:03:34] Speaker 04: But is it your position that the first statement was truly a protected whistleblower disclosure? [00:03:43] Speaker 03: That was found by the board below, and it has not been disputed by the government. [00:03:47] Speaker 03: They haven't contested that at all. [00:03:48] Speaker 04: It doesn't really say much of anything, though, does it? [00:03:52] Speaker 03: I think it raises questions about what's happening at this particular security station and to the extent it starts to become a squeaky wheel where somebody's going to start looking, are they rotating employees properly, are employees doing what they're supposed to be doing, are they talking on the phone or doing other things, and that way maybe it's not kind of your extreme whistle blowing case where you have [00:04:13] Speaker 03: a really kind of extreme violation, but you still have a situation where he's now drawing attention to how these supervisors are running this particular security station. [00:04:25] Speaker 03: And in that way, it is a whistle blowing, an act of whistle blowing. [00:04:29] Speaker 03: It was found to be one by the board. [00:04:31] Speaker 03: And at that point, the suspension comes, May 2nd, days after [00:04:37] Speaker 03: that act, so it does actually look like that was an act of retaliation. [00:04:41] Speaker 04: But even in the face of very clear whistleblowing, an agency can still bear its burden of establishing that this individual would have been suspended or discharged anyway, right? [00:04:56] Speaker 03: That's absolutely right. [00:04:57] Speaker 03: And I think that really goes back to the second legal error made by the administrative judge in the board below. [00:05:04] Speaker 03: The administrative judge specifically found that the charge is well supported and the suspension penalty was a reasonably measured response to the charge. [00:05:12] Speaker 03: The problem is what we don't have in the record is he had these three SOP violations in March, and so we suspended it because of them. [00:05:19] Speaker 03: What you really have is he had some SOP violations in March. [00:05:23] Speaker 03: Then you have this mid-year review evaluation. [00:05:25] Speaker 03: The mid-year review evaluation says nothing about SOP violations and says nothing about any sort of, you know, [00:05:32] Speaker 03: suspension or disciplinary action that's coming. [00:05:35] Speaker 03: In fact, what it does say is in the area of risk-based security, it rates Mr. Asrari as a three. [00:05:41] Speaker 03: What that means is that he shows a knowledge of SOPs and properly applies the SOPs. [00:05:46] Speaker 03: So you have these events, these SOP violations in March. [00:05:49] Speaker 04: Well, there's a reason it was a three as opposed to a four or a five, right? [00:05:54] Speaker 03: That's fair, but a three is achieving expectations and [00:05:58] Speaker 03: is described as properly applying SOP. [00:06:01] Speaker 04: So if you have these... Is it your position that a mid-year review has to outline every reason that it's not a perfect number? [00:06:10] Speaker 03: No, I don't think we would take that extreme of a position, but we would take the position that if there had been... That is argument you're making, and you're citing Whitmore for that proposition, right? [00:06:23] Speaker 03: Well, to the extent that this particular performance review evaluation, what it says, the fact that he got a three in this area and it's saying he's properly applying SOPs and makes no mention of this particular violation that is so extreme they're going to suspend him for five days. [00:06:39] Speaker 03: It doesn't make any sense. [00:06:40] Speaker 00: And at the very least... But are you saying that he makes no mention of it or that it was completely ignored? [00:06:46] Speaker 03: Oh, maybe I misunderstood Judge O'Malley's question. [00:06:49] Speaker 03: The administrative judge, with respect to the suspension, makes no mention of it and should have under Whitmore, because it plainly contradicts the conclusion that he reached. [00:06:57] Speaker 03: And so under Whitmore, at the very least, you need to address and explain how you got past what's said in the mid-year review evaluation. [00:07:04] Speaker 00: So in Whitmore, there was evidence that the countervailing evidence was ignored, just not considered at all. [00:07:14] Speaker 00: What's similar about that in this case? [00:07:18] Speaker 03: So we would not go so far as to say that the media review evaluation was ignored because, of course, he briefly mentions it in the context of the IPN. [00:07:28] Speaker 03: But the fact that you have the content of the media review evaluation contradicting the conclusion he's reaching, we would say that is [00:07:38] Speaker 03: you know contradictory countervailing evidence, it detracts from his conclusion and so at the very least under Whitmore you need to address it, you need to explain it and say how I got from point A to point B not withstanding these facts. [00:07:49] Speaker 04: Well wasn't there actually evidence in the record that initially after the first violation in March the conclusion was well I'm going to do some kind of discipline I'm not going to go so far as to suspend him and [00:08:05] Speaker 04: But after the second violation, they started going back and looking and realizing it was a lot more than just three violations. [00:08:12] Speaker 03: So on March 26th, Ms. [00:08:14] Speaker 03: Ashcraft writes a memo that says, I'm thinking about some sort of disciplinary action. [00:08:19] Speaker 03: She writes a second memo on March 28th after the third violation. [00:08:23] Speaker 03: It says she had previously thought about a performance evaluation, but it's silent as to any future disciplinary activity. [00:08:29] Speaker 03: So we don't really know what's happening there. [00:08:31] Speaker 03: There's a fact finding that occurs. [00:08:33] Speaker 03: It's done by Mr. Bezerres. [00:08:35] Speaker 03: It's completed on April 7. [00:08:36] Speaker 03: It is very hard to make sense of what the fact finding says, because it is internally contradictory. [00:08:41] Speaker 03: But notwithstanding that, Mr. Bezerres finished that fact finding on April 7. [00:08:46] Speaker 03: On April 11, you have the mid-year review evaluation. [00:08:49] Speaker 03: Mr. Bezerres is in it. [00:08:50] Speaker 03: He's conducting it. [00:08:52] Speaker 03: So it makes very little sense that if they had the SOP violations, and then a fact finding, and from that, we're going to suspend this man. [00:09:00] Speaker 03: that then you give him and achieves expectations in his mid-year review evaluation for that specific source? [00:09:06] Speaker 01: I don't really find anything odd about that. [00:09:08] Speaker 01: I mean, the mid-year review process would have probably started weeks, if not months earlier, and may already have culminated even before Mr. Buzara's process was in place or finished. [00:09:22] Speaker 01: So these aren't necessarily the same tracks. [00:09:27] Speaker 01: Why are you saying it doesn't make sense that a mid-year evaluation, which was being probably done for the entire staff, I'm sure it was required, at least by regulations, if not statutes, and it was probably done on kind of a systematic basis, would have necessarily encompassed an investigation targeted at certain specific misconduct? [00:09:52] Speaker 01: I mean, I think what you're saying is, well, once they found this out, [00:09:57] Speaker 01: They should have reconsidered and given him a new mid-year evaluation. [00:10:02] Speaker 01: But I'm not sure that's how the government works. [00:10:05] Speaker 01: These evaluations are usually done on a certain cycle. [00:10:08] Speaker 01: They're required to be done and signed by a certain cycle. [00:10:11] Speaker 01: So it may have been done and signed and put into place. [00:10:15] Speaker 01: And he had it given to him or discussed with them. [00:10:18] Speaker 01: And this investigation was proceeding on a separate track. [00:10:22] Speaker 01: It doesn't seem to me all that illogical. [00:10:25] Speaker 01: that the mid-year evaluation wouldn't have considered this evidence? [00:10:29] Speaker 03: I think in the abstract, I would agree with you, Judge Hughes, except for that this particular mid-year review evaluation in April was for the time period up to and including March 31st. [00:10:40] Speaker 03: So everything that happened in March that was allegedly the cause of his suspension should have been encompassed by that review period. [00:10:48] Speaker 04: Well, didn't he get a one for purpose on his knowledge of SOPs? [00:10:53] Speaker 03: He got a one in two other categories, and if I can go to it. [00:11:00] Speaker 04: One was getting along with coworkers, and I thought the other one was knowledge of SOPs. [00:11:05] Speaker 03: I believe it's actually communication. [00:11:11] Speaker 03: So the performance goal one, which is the one that changes in the IPN, that's the one that is specific to the SOPs. [00:11:23] Speaker 00: Either way, he got the lowest score on two of the court competencies. [00:11:28] Speaker 03: That's right. [00:11:29] Speaker 00: And how often does that happen at this airport? [00:11:32] Speaker 03: I'm sorry? [00:11:33] Speaker 00: Do you know how often that happens at this particular airport? [00:11:36] Speaker 03: There wasn't evidence as to car factor three in this case for the IPN or for the removal proceeding. [00:11:47] Speaker 03: That may suggest that it doesn't happen that often. [00:11:50] Speaker 03: There's some testimony sort of to that [00:11:53] Speaker 03: effect, but I don't think we have definitive evidence either way on that. [00:11:56] Speaker 01: One is failing, right? [00:11:58] Speaker 03: One is failing. [00:11:58] Speaker 01: And don't the agency's regulations require, if you're failing, that some action be taken? [00:12:04] Speaker 03: That's correct. [00:12:05] Speaker 03: Normally, if you have an unacceptable rating, you should immediately be put into a performance review plan. [00:12:11] Speaker 03: It's not what happened here. [00:12:12] Speaker 03: In fact, the performance review plan didn't even came two months later after they said that there were additional deficiencies. [00:12:22] Speaker 03: So it's not that they had this performance evaluation in mid-April, and then suddenly, and we're doing the performance review plan and putting it on it. [00:12:30] Speaker 01: They actually said... Well, they did it two months later, though. [00:12:33] Speaker 01: They have done it two months later. [00:12:35] Speaker 01: Again, I think you're reading into timing of government events that are perfectly explained by the way the government operates, which is you do these evaluations. [00:12:45] Speaker 01: A performance improvement plan usually requires, I don't know if the agency at TSA does this, [00:12:50] Speaker 01: I assume they have to, in certain instances, an actual written document saying, here, you're deficient in these three areas. [00:12:56] Speaker 01: Here's what you need to do to meet your goals and improve your performance to an acceptable level. [00:13:02] Speaker 01: The fact that it might take two months to complete that document isn't surprising to me at all. [00:13:07] Speaker 01: I mean, why does that gap tell us anything about whether that's retaliatory? [00:13:13] Speaker 03: Well, for one thing, the protected disclosure comes in the middle of it. [00:13:17] Speaker 03: So you have the evaluation in mid-April, and then you have the protected disclosure April 30th. [00:13:23] Speaker 03: A couple days later, now he's being suspended. [00:13:25] Speaker 03: Now, suddenly, they're changing what was in his performance evaluation, lowering two ratings. [00:13:32] Speaker 03: In one case, based on events that happened back in March and should have been addressed in the performance evaluation. [00:13:37] Speaker 03: And now they're doing something different. [00:13:39] Speaker 03: And so when you have this particular sequence of events, it does smack of retaliation and requires [00:13:48] Speaker 03: Government's burden below is clear and convincing evidence. [00:13:49] Speaker 03: It requires something to show that this is what was going to happen absent his whistle blowing. [00:13:54] Speaker 03: Here, all we have is evidence that this is something that could have happened absent either way. [00:14:00] Speaker 04: OK, you're in to your rebuttal. [00:14:01] Speaker 04: We'll restore your three minutes. [00:14:35] Speaker 02: May please the court. [00:14:36] Speaker 02: Substantial evidence supports the MSPB's decision denying Mr. Asrari's request for corrective action in this individual right of action. [00:14:45] Speaker 02: The evidence in support of the five-day suspension was strong. [00:14:48] Speaker 02: It was overwhelming. [00:14:49] Speaker 02: He committed three SOP violations from March 26th to 28th. [00:14:52] Speaker 02: It was discovered that he had committed additional ones on March 25th. [00:14:57] Speaker 02: He had a history of SOP violations. [00:14:59] Speaker 04: Given that it's the government's burden, why shouldn't we hold it against the government that they didn't spell out any of this stuff in the April performance review? [00:15:09] Speaker 02: Your Honor, the April performance review is not inconsistent with the five-base suspension. [00:15:15] Speaker 02: The performance evaluation and disciplinary process are on separate tracks, as Judge Hughes was asking about. [00:15:23] Speaker 02: And even if they were on the same track, the disciplinary process was in the beginning stages. [00:15:29] Speaker 02: The fact-finding had recently been completed. [00:15:31] Speaker 02: This was Chapter 75 discipline, serious discipline, suspending an employee. [00:15:37] Speaker 02: This is not something that was moving quickly. [00:15:39] Speaker 02: But during this time, Mr. Esrari was not performing security duties. [00:15:46] Speaker 04: issue something in April that purports to reflect everything up through the end of March and then say, but we're allowed to now go back and dig up some things that happened in March and add to that. [00:15:55] Speaker 02: Is Your Honor referring to the improvement plan notice in June? [00:15:59] Speaker 02: Were they referred back? [00:16:00] Speaker 04: Yes. [00:16:01] Speaker 02: Well, on the mid-year progress review, they were still conducting the investigation and the disciplinary process. [00:16:07] Speaker 02: So you wouldn't expect to find that misconduct noted in a mid-year review. [00:16:12] Speaker 02: And I'll note, Your Honor, that [00:16:14] Speaker 02: The mid-year review, the ones were for critical thinking, core competency one is critical thinking, and core competency five, teamwork. [00:16:22] Speaker 02: And under critical thinking, it was recommended that Mr. Asrari go and review SOPs. [00:16:28] Speaker 02: So although it didn't spell out that he had engaged in misconduct, it did note that he was failing with the critical thinking, and he needed to review SOPs. [00:16:38] Speaker 02: As for the improvement plan, it did increase the number of unsatisfactory areas. [00:16:44] Speaker 02: oral communication, and it also included a performance goal for space security. [00:16:50] Speaker 02: And Ms. [00:16:51] Speaker 02: Whitehead, a transition security manager, testified without dispute, and it was credited by the administrative judge, that additional deficiencies were uncovered as the improvement plan notice was being generated. [00:17:06] Speaker 04: Judge Rainey, you asked- But the improvement plan notice is being generated after the first disclosure. [00:17:12] Speaker 02: No, Your Honor, the improvement plan, whether opinion was put to paper after the first disclosure, I don't think the record speaks to that. [00:17:19] Speaker 02: But there is ample testimony from witnesses saying to the effect that the improvement plan was being discussed. [00:17:27] Speaker 02: And it's not something that frequently is put together. [00:17:30] Speaker 02: So you heard from Ms. [00:17:32] Speaker 02: Ashcroft, the administrative judge heard from Ms. [00:17:35] Speaker 02: Ashcroft testifying to the fact that she began discussing the improvement plan with HR in late March. [00:17:41] Speaker 02: She testifies to that effect. [00:17:42] Speaker 02: at page 16, 57, 58. [00:17:44] Speaker 04: But the only documentation we have from her is that she wasn't considering that, that she was considering something less than that, right? [00:17:50] Speaker 02: The documentation we have from her is the March 28th memoranda, and I believe the other one is 27th, even though it was in reference to the March 26th events. [00:17:59] Speaker 02: And it said at the time of the first day's violations on March 26th, she was considering [00:18:07] Speaker 02: an improvement plan. [00:18:08] Speaker 02: But that's not inconsistent with her then testifying that she continued to have discussions about putting him on an improvement plan. [00:18:16] Speaker 02: And Ms. [00:18:16] Speaker 04: Whitehead... And what's the point of doing all this in secret? [00:18:21] Speaker 02: I'm afraid, in secret, in the sense that Mr. Asrari... Was not informed that this was all going on. [00:18:28] Speaker 02: Well, the decision hadn't been made on what to do. [00:18:31] Speaker 02: And I wouldn't say it was a secret that he was [00:18:35] Speaker 02: his performance and his conduct was under review. [00:18:37] Speaker 02: He was pulled from his screening duties because it was determined that he was a danger to the traveling public to allow him to continue. [00:18:45] Speaker 04: Even though in April he gets a three in terms of security risk? [00:18:50] Speaker 02: Acceptable. [00:18:51] Speaker 02: The risk-based security. [00:18:53] Speaker 02: Yes, but as we've noted, he received unsatisfactory performance reviews for two of the areas. [00:19:01] Speaker 02: And it was clear he needed to review the SOPs, and he was having problems with them. [00:19:06] Speaker 02: The problem that Petitioner's Council seems to have with the mid-year review is that it wasn't robust enough or didn't mention misconduct. [00:19:14] Speaker 02: But it's important to note that the mid-year review came before any disclosure. [00:19:18] Speaker 02: The SOP violations came before any disclosure. [00:19:23] Speaker 02: So Petitioner's Council's argument seems to be that the mid-year review suggests that they no longer were going to discipline him or weren't going to suspend him for five days, and that's shown [00:19:35] Speaker 02: the mid-year review, but that doesn't add up considering the testimony and the documents that were considered. [00:19:42] Speaker 04: So in other words, an employee can't rely on the fact that the mid-year review goes through March 31st. [00:19:48] Speaker 04: Once it gets that on April 15th, he's got to assume that, oh, they may find something else. [00:19:53] Speaker 04: What if they found something from January? [00:19:55] Speaker 04: Would they have been allowed to discipline him on that? [00:19:58] Speaker 02: Well, I don't know about any statute. [00:20:02] Speaker 02: There actually are regulations to think about how far back you can go in time. [00:20:06] Speaker 02: But Mr. Asrari's misconduct was being looked into immediately. [00:20:10] Speaker 02: And they weren't going back too far in time when they were looking at it. [00:20:16] Speaker 02: And when they were doing the mid-year review, although I know the suggestion is that they should have repeated the SOP violations and the fact that he was going to be suspended in the mid-year review, [00:20:26] Speaker 02: That disciplinary process hadn't been completed up until that point. [00:20:30] Speaker 00: Did the mid-year review take into account his performance on the improvement plan? [00:20:37] Speaker 02: The mid-year, well, the improvement plan wasn't issued until June 19th. [00:20:41] Speaker 02: So it was, under the mid-year review, having received ones, and as petitioner counsel noted, according to the TSA handbook, [00:20:51] Speaker 02: That means he was subject to get his performance up to a satisfactory level. [00:20:57] Speaker 02: But even before the mid-year review, Mr. Ashcroft was discussing with others putting him on an improvement plan because of his history of SOP violations. [00:21:06] Speaker 04: Well, when you say history, I mean, wasn't the administrative judge required to consider the many years that he was with TSA without any notice of a violation? [00:21:17] Speaker 02: Well, Your Honor, the administrative judge did consider the full material before him in the fact-finding material, which starts at 1280, but in particular at 1292 of the appendix. [00:21:28] Speaker 02: It includes a history of SOP violations. [00:21:32] Speaker 02: Mr. Azari would have been aware of those in the proposed suspension. [00:21:36] Speaker 02: And in the suspension itself, it notes his history. [00:21:39] Speaker 00: Well, he worked at an airport for two years prior to transferring to this one. [00:21:44] Speaker 00: And those two years in this prior record doesn't indicate any poor performance type reviews or SOP violations. [00:21:57] Speaker 02: That's not before the court. [00:21:59] Speaker 02: And it is true that his conduct became particularly egregious in this time frame. [00:22:06] Speaker 00: Well, I brought it up because you said that his record had been looked at. [00:22:11] Speaker 00: the history of his employment record had been located? [00:22:14] Speaker 02: Oh, Your Honor, I was referring there to the fact-finding material, how it gathered documents from prior SOP violations. [00:22:21] Speaker 02: So even though he hadn't been disciplined for those prior SOP violations, there had been documentation of prior violations. [00:22:28] Speaker 04: When did Ms. [00:22:29] Speaker 04: Ashcraft begin supervising Mr. Asari? [00:22:32] Speaker 02: Well, she testified that she was not his direct supervisor. [00:22:35] Speaker 02: But she witnessed that she was a supervisory transportation security officer. [00:22:40] Speaker 02: So she was supervising at the time of some of these SOP violations. [00:22:46] Speaker 02: And she witnessed some of them. [00:22:48] Speaker 02: And I think that's one of the reasons that she took the lead in preparing the memoranda for Mr. Bezerra's. [00:22:54] Speaker 02: And she was the one that proposed the suspension on May 2. [00:22:58] Speaker 02: And I think it's important to note that Ms. [00:23:01] Speaker 02: Ashcroft [00:23:02] Speaker 02: testified and the administrative judge credited having witnessed or testified that she had decided as of late March that she was going to propose suspension or other form of discipline and she testifies to that effect in the transcript in the penance at page 1664. [00:23:18] Speaker 04: Of course by that point, by the time she testifies, there's been a second whistleblower disclosure that identifies her personally as having [00:23:26] Speaker 04: engaged in her own SLP violations, right? [00:23:30] Speaker 02: By the time she testifies in front of the administrative judge, yeah. [00:23:34] Speaker 04: And her testimony was inconsistent with the written documentation where she had said that she wasn't going to suspend him. [00:23:41] Speaker 02: Well, I don't think it actually, the documentation discussed whether she was going to suspend or what she was going to do after she learned on March 28 that he had committed a third violation after she discovered that he had three violations on March 25. [00:23:55] Speaker 02: So I don't think that her testimony is inconsistent and the administrative judge didn't find it inconsistent. [00:24:02] Speaker 02: And the question with the suspension and if the improvement plan notices whether there was retaliation for the April 30th disclosure. [00:24:09] Speaker 02: And Your Honor, as Petitioner's Counsel, it doesn't really say much there. [00:24:12] Speaker 02: And that's kind of the sense one Tav has in reading it. [00:24:18] Speaker 02: It really is just complaining about his duties that he had been assigned. [00:24:22] Speaker 02: They were not security duties, and he was complaining that he was unable to perform them. [00:24:27] Speaker 02: So there wasn't really much motivation, just even on the face of the document, that someone would have to suspend Mr. Esrari and then put him on an improvement plan notice. [00:24:37] Speaker 02: And to the contrary of having any ill will, Ms. [00:24:40] Speaker 02: Ashcroft actually encouraged Mr. Esrari to document his concerns. [00:24:45] Speaker 02: It says that on the face of the disclosure at 247 of the appendix. [00:24:48] Speaker 04: What are we to make of the fact that after his second disclosure, there was a [00:24:53] Speaker 04: there was a review and it was determined that many people were violating various SOPs. [00:25:00] Speaker 02: I don't think the records support that the conclusion that the administrative inquiry conducted as a result of the disclosure found that many people were violating the SOPs. [00:25:10] Speaker 00: Well, they took corrective action. [00:25:12] Speaker 02: And as to the agency's credit, they took these allegations seriously. [00:25:15] Speaker 00: But by taking corrective action, I think that that shows that some of the other employees were, in fact, engaging in these SOP violations. [00:25:24] Speaker 02: I don't think the record support and petitioner has appointed to which SOPs were being violated. [00:25:30] Speaker 02: The policy change was about eating food and cell phone use. [00:25:35] Speaker 04: That's what he reported. [00:25:36] Speaker 02: That's what he reported, but that's not per se. [00:25:38] Speaker 04: Are you telling me there's no SOP that says when someone's supposed to be [00:25:42] Speaker 02: analyzing whether there's a security risk in in a security line at the airport that that's okay for them to be chatting on their cell phone with their friends I don't think that's I doubt that there's not an SLP covering that maybe with that that exact fact pattern that if they're supposed to be doing so they're supposed to be looking at a screen and they're on the phone I would I would suspect you're right I think the disclosure though that Mr. Asrari made generally concerned doing [00:26:08] Speaker 02: non-work activities on work hours. [00:26:12] Speaker 02: But the administrative inquiry did not... Although they weren't as benign as that. [00:26:18] Speaker 00: I mean, some of these activities went to security risk, like ordering pizza and having it delivered right there at the gate. [00:26:26] Speaker 02: That was one of the allegations. [00:26:29] Speaker 00: That's a security risk. [00:26:30] Speaker 00: In TSA, the airport changed the policy of... So the employees that were engaged in that activity, let's say the pizza activity, there was pizza, viewing videos in the bag room, and there was another one. [00:26:44] Speaker 00: Were the employees that were involved in those, were they given any type of performance reviews? [00:26:48] Speaker 00: Were they suspended or removed? [00:26:50] Speaker 02: I don't think the record speaks to that, but to the broader point of whether a TSA takes SOP violations seriously and disciplines, there is testimony to that effect with Mr. Bryan, who's the highest official that testified in front of the administrative judge. [00:27:04] Speaker 02: He was assistant federal security director. [00:27:06] Speaker 00: And starting on page 1961, he discusses... Well, after he made this valuable disclosure, which you're telling us now is not only a legitimate but beneficial disclosure, he was suspended and removed. [00:27:24] Speaker 02: Well, that's the one disclosure that comes... That disclosure came after the first two personal actions at issue, the IPN in June and the [00:27:35] Speaker 04: But it's still relevant because the question is not just whether there was an action taken in response to a particular disclosure, but whether he would have been terminated or suspended otherwise. [00:27:48] Speaker 04: And if other people are allowed to get away with SOP violations without being terminated or suspended or placed on performance reviews, then that's indicative of whether or not, but for these violations, he would have [00:28:03] Speaker 04: suffered these additional consequences. [00:28:06] Speaker 02: Your Honor, I don't think that the record supports the conclusion that other people were allowed to get away with SOP violations. [00:28:12] Speaker 02: I think Mr. Crosby was someone that Mr. Asrari recalled. [00:28:16] Speaker 02: He had been suspended for violating a single SOP. [00:28:19] Speaker 02: Mr. Asrari was someone in a league of his own in the number of SOP violations. [00:28:24] Speaker 02: And as I mentioned, Mr. Bryant testified to having been aware of or involved in discipline for other SOP violations. [00:28:33] Speaker 02: And it's important to remember that Mr. Azarari was not removed for violating a single SOP or for those three. [00:28:39] Speaker 02: Mr. Azarari was removed because his performance had fallen below an unsatisfactory level over multiple areas of his performance. [00:28:48] Speaker 02: So when he was removed, he was removed because he was unable to bring his performance up to a satisfactory level. [00:28:54] Speaker 02: Ms. [00:28:54] Speaker 02: Whitehead, who proposed the suspension, testified he was removed for that reason. [00:28:58] Speaker 02: At page 1776 of the appendix, Mr. Bryant, who decided the removal, testified that he was removed because he failed his improvement plan. [00:29:08] Speaker 02: In the documents before the administrative judge, including the improvement plan, notes show that Mr. Asrari was failing his improvement plan. [00:29:15] Speaker 02: He wasn't really making much of an effort. [00:29:17] Speaker 02: even to complete it well. [00:29:20] Speaker 02: So he wasn't removed because of an SOP violation. [00:29:22] Speaker 02: He was removed because he had a history of performing badly, and the agency had concluded that it was a danger to have him continue as a transportation security officer. [00:29:36] Speaker 04: Okay, your time's up. [00:29:39] Speaker 02: Thank you. [00:29:52] Speaker 03: Just briefly, the government brought up Miss Whitehead's testimony. [00:29:57] Speaker 03: Miss Whitehead testified that they did not begin preparing Mr. Asrari's IPN until after she started in April, so at some point after April 22nd, which is the day she started. [00:30:07] Speaker 03: And that IPN basically becomes a do-over of Mr. Asrari's mid-year review evaluation, where they're going back and looking at things and now changing him. [00:30:16] Speaker 03: And so looking at the board's decision, that was the sort of thing, that was the sort of [00:30:20] Speaker 03: change in contradictory evidence that under Whitmore very much should have been addressed and at least explain how he got past it. [00:30:26] Speaker 00: You're arguing well, I think, about that there's this coincidence that you got these different stages that have come together and by that we should infer something in favor of your client. [00:30:40] Speaker 00: But what is the evidentiary nexus between those three events? [00:30:45] Speaker 03: I'm sorry, which three events? [00:30:47] Speaker 00: Well, the ones you're talking about, the midterm and the poor performance reviews, what's the nexus between those? [00:30:58] Speaker 03: I think our argument is that it's missing. [00:31:00] Speaker 03: And so because the government has a burden here. [00:31:03] Speaker 00: What's missing? [00:31:04] Speaker 03: The nexus, the connection to say that there was poor performance in March and we had... So can we say that there is no nexus and that's why it's not mentioned? [00:31:16] Speaker 03: No, I don't think that's how I would say it. [00:31:18] Speaker 03: I think the argument is that we have this mid-year review evaluation. [00:31:23] Speaker 03: It could possibly be the basis of a performance review plan, but there's no evidence suggesting that it actually was the basis. [00:31:30] Speaker 03: And the government's burden and what the board was supposed to find was that, in fact, it was the basis of the performance review plan, or there was some other basis. [00:31:39] Speaker 03: But that's not what's in the record. [00:31:41] Speaker 03: So the missing piece is, [00:31:43] Speaker 03: is the link. [00:31:44] Speaker 03: What triggered this performance review plan? [00:31:45] Speaker 00: Because we know once he gets into the performance review plan, we're very much in a world of... Are we required under our case law to assume, to presume that that evidence was reviewed? [00:31:58] Speaker 03: You assume that the court reviewed all of the evidence, the court below. [00:32:02] Speaker 03: However, this court had said in Whitmore that [00:32:06] Speaker 03: Any determination by an AJ that is based on findings made in the abstract and independent of the evidence which fairly detracts from his or her conclusions is unreasonable and not supported by substantial evidence. [00:32:17] Speaker 03: The court goes on in an earlier passage to talk about, you have to actually address it. [00:32:21] Speaker 03: That's what allows this court to perform its capacity review. [00:32:24] Speaker 00: What about Lauder versus Department of Homeland Security? [00:32:26] Speaker 00: We said the agency has broad discretion to determine what the opinion should contain and in what detail. [00:32:32] Speaker 03: That's fair. [00:32:34] Speaker 03: But I do think that it would be contradictory to the court's determination that where you have clear countervailing evidence, it needs to be addressed. [00:32:42] Speaker 01: And so in this case. [00:32:43] Speaker 01: But that's not our standard review, is it? [00:32:45] Speaker 01: I mean, your friend on the other side has pointed to, I mean, clearly you want to point out inconsistencies and holes. [00:32:53] Speaker 01: But there's testimony, there's documentary evidence for all of these decisions that the AJ believed was sufficient to meet the government's clear and convincing [00:33:03] Speaker 01: You tell a different story that the AJ certainly could have believed, but didn't. [00:33:08] Speaker 01: It found more credible to government's account that he was performing badly, which is why he was suspended. [00:33:17] Speaker 01: He got a poor performance review, which was why he got the performance improvement plan, and he failed his performance improvement plan, which was why he was removed. [00:33:27] Speaker 01: There's testimony and documentary evidence for all of that, isn't there? [00:33:31] Speaker 01: And isn't that all we need to, in fact, aren't we required to affirm based on that? [00:33:36] Speaker 01: I know I've taken you over, you can answer. [00:33:37] Speaker 03: Thank you. [00:33:39] Speaker 03: I don't agree with that, and I don't agree with that because the issues that we're raising here are legal errors, legal errors that undermine whether... Well, let's just assume. [00:33:47] Speaker 01: I get you're trying to manufacture a legal error here, but to me, I don't see any legal error. [00:33:52] Speaker 01: I think the board looked at all of this. [00:33:54] Speaker 01: and made the decision that the government approved its burden by clear and convincing evidence based upon this. [00:34:00] Speaker 01: And if that's the case, isn't there substantial evidence for all of those conclusions? [00:34:06] Speaker 03: If you accept that the board considered all the evidence and can explain away the discrepancies in the record, then potentially, but I think you still have the additional legal error that their findings were not [00:34:21] Speaker 03: that they would have taken this action, but rather they could have. [00:34:23] Speaker 03: So I think you still have the second legal error. [00:34:27] Speaker 04: Thank you. [00:34:28] Speaker 04: Time's up. [00:34:29] Speaker 04: Thank you.