[00:00:27] Speaker 03:
Oh, yes, thank you.

[00:00:36] Speaker 04:
Our third case this morning is number 181147, Doe versus Housing Development.

[00:00:44] Speaker 00:
Good morning, Your Honors.

[00:00:46] Speaker 00:
May it please the Court, I'm Tamara Miller, and I represent the petitioner, Ms.

[00:00:49] Speaker 00:
Han Doe.

[00:00:51] Speaker 00:
The substantial, if not overwhelming, record evidence in this case requires reversal.

[00:00:57] Speaker 00:
of the board's decision to sustain the demotion and suspension of our client, Ms.

[00:01:01] Speaker 00:
Doe.

[00:01:03] Speaker 00:
The agency charged Ms.

[00:01:04] Speaker 00:
Doe with negligence of duty.

[00:01:07] Speaker 00:
That's described in two specifications, neither of which it proved.

[00:01:12] Speaker 00:
And if you examine the actual language of those specifications, she's accused of hiring this employee in 2006, knowing that she lacked the college degree which was required for the position, and that she

[00:01:27] Speaker 00:
created a GS14 higher level position for her.

[00:01:30] Speaker 00:
Three years later in 2009, knowing she didn't have a college degree is required for the position.

[00:01:36] Speaker 00:
In its brief, the agency wants to ignore what it charged.

[00:01:41] Speaker 00:
And that is simply not in compliance with the law.

[00:01:47] Speaker 00:
This court made it very clear in the King versus Nazareth case that the agency is required to prove what it charges.

[00:01:54] Speaker 00:
You remember that case, the employee was accused

[00:01:57] Speaker 00:
The evidence at the hearing showed evidence of misappropriation, right?

[00:02:01] Speaker 00:
The employee didn't intend to take the $20 permanently and in fact return it.

[00:02:05] Speaker 01:
Isn't it true that Ms.

[00:02:06] Speaker 01:
Doe didn't look at whether the particular person was qualified under a combination of education and work experience?

[00:02:16] Speaker 00:
Well, Your Honor, even if you look at the agency's alternative theory of negligence, which it's abandoned, clearly in its brief, and it's saying that she failed alternatively,

[00:02:27] Speaker 00:
to verify that this employee was qualified, we submit that Ms.

[00:02:31] Speaker 00:
Doe acted, this is back in 2006 now, we're talking 10 years earlier, acted like any reasonably prudent supervisor would do.

[00:02:40] Speaker 00:
At the time that she hired Ms.

[00:02:42] Speaker 00:
Asuncion in 2006, this employee had already been hired by the agency a year and a half earlier.

[00:02:49] Speaker 00:
In 2005, she'd already been converted from an employee, from a student to a career conditional employee.

[00:02:56] Speaker 00:
She had actually been promoted by the agency in this Baltimore office.

[00:02:59] Speaker 00:
She had actually been hired by another agency.

[00:03:02] Speaker 01:
I'm just trying to figure something out here.

[00:03:08] Speaker 01:
As far as I understand, there's no evidence in the record that Ms.

[00:03:10] Speaker 01:
Doe actually investigated for herself whether or not the person in question had this combined experience and education to qualify for these auditor positions.

[00:03:24] Speaker 01:
But she knew that

[00:03:26] Speaker 01:
this particular person couldn't qualify by having a college degree.

[00:03:32] Speaker 01:
So that's what I'm just trying to figure out.

[00:03:34] Speaker 01:
She had certain knowledge.

[00:03:36] Speaker 01:
Yes.

[00:03:36] Speaker 01:
This person couldn't qualify through having a college degree because that person didn't have a college degree.

[00:03:42] Speaker 00:
Yes.

[00:03:42] Speaker 01:
And then, as far as I understand, on this record, there's no evidence that Ms.

[00:03:46] Speaker 01:
Doe took the additional step to figure out, well, is there some other way that this person's qualified, i.e.

[00:03:54] Speaker 01:
through a combination of education and experience?

[00:03:56] Speaker 00:
Yes, Your Honor.

[00:03:57] Speaker 00:
In this particular instance, my client had been a supervisory auditor for 13 years or at that time.

[00:04:04] Speaker 01:
Is it fair to say that my understanding is right, that there's no evidence in the record that shows that Ms.

[00:04:09] Speaker 01:
Doe undertook that exercise to try to figure out whether this person was qualified through some other means, given that this person didn't have a college degree?

[00:04:17] Speaker 00:
Well, that's partly true and not.

[00:04:20] Speaker 00:
In the sense that our client, because she had experience as an auditor, had actually been trained as well.

[00:04:26] Speaker 00:
She understood the OPM standards, and they were generally well understood at that time, that you could be qualified by a combination of education and experience.

[00:04:35] Speaker 00:
And at the time, when it was clear to her that this employee did not have a college degree, she used her own experience and knowledge that you can qualify with both as combination.

[00:04:46] Speaker 00:
And she also spoke to her supervisor, who was an SES, and who also had that same understanding.

[00:04:53] Speaker 00:
And together, collectively,

[00:04:55] Speaker 00:
They understood that this employee was qualified.

[00:04:57] Speaker 00:
She'd been working as an auditor almost two years at that point, a full-fledged auditor.

[00:05:01] Speaker 00:
And not only has she done that.

[00:05:02] Speaker 04:
But I think what's missing, and I understand the two separate issues here, one being whether the specification was approved.

[00:05:11] Speaker 04:
Yes, sir.

[00:05:11] Speaker 04:
But then assuming that the specification problem is put to one side,

[00:05:21] Speaker 04:
The question is whether there was substantial evidence as to whether she was negligent at that improper charge.

[00:05:29] Speaker 04:
And isn't Judge Chen right that she doesn't say, she doesn't testify that she made an investigation as to whether the alternative standard is satisfied?

[00:05:39] Speaker 04:
She relied on her supervisor, and I guess to some extent, she relied on HR as having the obligation to do that, right?

[00:05:49] Speaker 04:
precisely, and not only that.

[00:05:51] Speaker 04:
So the question becomes then whether that kind of reliance would be reasonable or whether she had to make her own investigation.

[00:06:03] Speaker 00:
Yeah, and we submit that the uncontroversial and substantial evidence in this record shows that, you know, with the benefit of hindsight, hindsight's always 20-20.

[00:06:12] Speaker 00:
But clearly at multiple gates in the last, in the ten years before this, you know, human resources,

[00:06:19] Speaker 00:
was consulted by that SES manager and said, listen, it's your choice.

[00:06:22] Speaker 00:
That human resources advisor who advised the SES supervisor, Gwen, also knew you could qualify.

[00:06:28] Speaker 00:
Everyone knew you could qualify as a result of a combination of both education and experience.

[00:06:32] Speaker 00:
But said, essentially, it's up to you.

[00:06:35] Speaker 00:
And so if that had been an absolute job prerequisite, human resources would never have approved the hiring or the transfer of this employee.

[00:06:43] Speaker 00:
In fact, we submit

[00:06:45] Speaker 00:
that a reasonable federal manager is going to rely on human resources.

[00:06:49] Speaker 00:
If human resources says, it's your choice.

[00:06:52] Speaker 00:
You know, you believe she's qualified as a result of education experience.

[00:06:55] Speaker 00:
But our plant not only just had just the education experience of that employee for over the two years, because that check in by human resources in 2006 was verified yet again in 2008 when they did a background check on her.

[00:07:09] Speaker 00:
And that's before she was promoted to the next higher level position in 2009.

[00:07:14] Speaker 00:
Human Resources knew she didn't have a college degree and didn't disqualify her.

[00:07:18] Speaker 00:
And my client acted like any reasonable federal supervisor would do.

[00:07:23] Speaker 02:
The agency suggests, I think, that- At that point, everybody thought that she qualified by the combined experience, correct?

[00:07:30] Speaker 02:
Yes, absolutely.

[00:07:31] Speaker 02:
Well, isn't that the problem here, that your client did investigate to make sure that that was true?

[00:07:37] Speaker 00:
Well, here, you know, our client, I think, you know, not only reason, but relied on her two senior executive supervisors who had the same understanding.

[00:07:45] Speaker 00:
At the time of the promotion in 2009, now this employee has four years of experience.

[00:07:51] Speaker 00:
And so if human resources, you know, felt that she wasn't qualified at that time, they would have told the supervisor, no, she has to have this degree.

[00:07:57] Speaker 04:
What does the board say about that?

[00:08:00] Speaker 04:
her negligence and not investigating herself and her inability to rely on HR and her supervisor.

[00:08:07] Speaker 04:
What exactly did they say about that?

[00:08:09] Speaker 04:
What did the board say about that?

[00:08:11] Speaker 00:
Well, the board said that it rejected our client's testimony that she, I think if you look at it as a whole, both the board and the deciding official seemed to focus on... I'm asking where do I find what they said about her having

[00:08:31] Speaker 04:
an individual duty to investigate in the impropriety of her relying on HR and her supervisor.

[00:08:39] Speaker 00:
The board's decision, as it discusses this, is at page 17, I think, of the Joint Defendants.

[00:08:50] Speaker 00:
So the board, in its initial decision there, talks at length about the evidence that was

[00:08:57] Speaker 00:
And we would submit, substituted her own judgment, in fact, controverted the testimony.

[00:09:03] Speaker 00:
But what I'm asking, what does she say about Ms.

[00:09:07] Speaker 04:
Doe's individual obligation to investigate?

[00:09:12] Speaker 00:
The board concluded that she had an independent obligation, and that- Where does the board say that?

[00:09:27] Speaker 00:
Yes Yes, sir Here the appendix 17 the board Acknowledges the that 2009 appointment and the society officials testimony and essentially concurs that you know that that the appellant

[00:09:53] Speaker 00:
had this obligation and was held to a higher standard.

[00:09:56] Speaker 00:
She goes on in page 18 to explain that.

[00:10:01] Speaker 00:
So what we would say is that in doing so, not only did she ignore the actual charge and specifications that our client was defending herself against, she also ignored the testimony of the deciding official, who said at that time, even in the hearing, as was in the deciding official's written decision at page 329,

[00:10:21] Speaker 00:
and 335 and 337, that even the deciding official said, if Ms.

[00:10:27] Speaker 00:
Doe did not truly know that a college degree was required, there would be no neglect of duty.

[00:10:33] Speaker 00:
So while there is this sense that she should have done something different, even the deciding official in their testimony at the board, when it really came down to it, that deciding official decided that she must have known that this college degree was required.

[00:10:49] Speaker 00:
And she must have known because she asked the employee about it a few times.

[00:10:52] Speaker 00:
And even the deciding official herself said, fundamentally, what this came down to is not what she should have done because she understood that our client is not a human resources specialist, that HR, in fact, is supposed to be checking college transcripts and not your average federal manager.

[00:11:06] Speaker 04:
Where is the testimony that you referred to?

[00:11:10] Speaker 00:
Yeah.

[00:11:10] Speaker 00:
At appendix 17, and this is the board,

[00:11:16] Speaker 00:
And this is the second paragraph.

[00:11:18] Speaker 04:
Do we have the actual testimony in the appendix here or not?

[00:11:21] Speaker 00:
No.

[00:11:22] Speaker 00:
The actual testimony, and this is odd, because the actual testimony of this witness, the deciding official, it's missing in that aspect of the transcript.

[00:11:32] Speaker 00:
But the administrative judge acknowledged that that was the testimony provided by the deciding official, and in fact, cited it at page 17 of the appendix in her decision.

[00:11:42] Speaker 00:
And we submit to you that- Where did she cite that?

[00:11:44] Speaker 00:
It's in the second paragraph, right in the middle, where it says the deciding official, this is the witness, conceded that if the appellant did not truly know that a college degree was required, there would be no neglect of duty.

[00:12:00] Speaker 00:
That language is repeated in the actual written decision at pages 335 and 337 of the same deciding official.

[00:12:10] Speaker 00:
So what we're submitting is that the agency is changing.

[00:12:13] Speaker 00:
It's changing its definition of negligence.

[00:12:15] Speaker 00:
And that is simply not permitted.

[00:12:17] Speaker 00:
They have to prove what they charge.

[00:12:19] Speaker 00:
And here, even the deciding official in her written decision and in her testimony decided to demote and suspend our client because she felt that our client must have known that college review was required.

[00:12:31] Speaker 00:
That's simply not supported by substantial evidence in the record, frankly, any evidence.

[00:12:36] Speaker 00:
And now it's telling that the agency wants to abandon

[00:12:39] Speaker 00:
its charge and go with an alternative theory that our client failed to verify that this employee was qualified without a college degree and therefore deserved to be punished.

[00:12:50] Speaker 00:
Well, this court in the Lachance case, we think it's square on page because it says that if you have charges that are general, the board and this court will look to the actual specifications.

[00:13:05] Speaker 00:
But it's really not harmless error here.

[00:13:08] Speaker 00:
It's not harmless error because, as the court said in the chance, where the charge label provides no meaningful description of the charge, an agency would be free to prove any conduct generally relating to the charge described in the specification as long as it could be characterized as inappropriate or misconduct.

[00:13:27] Speaker 00:
Such a regime would be inconsistent with due process.

[00:13:30] Speaker 00:
So the agency is pursuing an alternative theory of negligence here.

[00:13:35] Speaker 00:
And that is simply it's harmful error.

[00:13:38] Speaker 01:
And it's also inappropriate because... What if hypothetically we agreed with you and said, okay, the articulation for the negligence finding that the board made is not truly lined up with the negligence theory articulated in the specifications of the deciding official?

[00:13:59] Speaker 01:
Do you have any dispute between what the deciding official did and the deciding official's rationale based on the specifications?

[00:14:08] Speaker 01:
Your problem seems to be more with between what HUD did and what the MSPB did, not necessarily what HUD did between the deciding official and the actual initial charges.

[00:14:20] Speaker 01:
Is that right?

[00:14:23] Speaker 00:
Yes, Your Honor.

[00:14:24] Speaker 00:
I think that's a fair statement.

[00:14:25] Speaker 01:
So then just getting back to my hypothetical.

[00:14:28] Speaker 01:
Yes.

[00:14:28] Speaker 01:
What if the board on remand said, we're still affirming the negligence determination by HUD because

[00:14:37] Speaker 01:
of the fact that Ms.

[00:14:41] Speaker 01:
Doe never did any investigation of this alternate way of qualification.

[00:14:48] Speaker 01:
There was really only one way for this person to be qualified, and that is by having a college degree.

[00:14:54] Speaker 01:
This person didn't have a college degree, so therefore selecting this person twice over was a negligence of her duty for hiring qualified people.

[00:15:06] Speaker 01:
Would that be something that's in line with what HUD did below?

[00:15:12] Speaker 01:
And therefore, we could reach the merits of that, and there wouldn't be this procedural defect that you're alleging here.

[00:15:25] Speaker 00:
Fundamentally, the issue we have, Your Honor, is that our client was found to have committed misconduct that she didn't commit.

[00:15:33] Speaker 00:
She's wrongfully accused.

[00:15:35] Speaker 00:
of disregarding, intentionally disregarding a college degree requirement here and hiring somebody that she knew wasn't qualified.

[00:15:42] Speaker 00:
If you read the specifications, that's exactly what they've accused her of.

[00:15:46] Speaker 00:
And just like the court in the Nazarod case said, you're branding her as something that she didn't commit.

[00:15:52] Speaker 00:
You're branding her as a thief in Nazarod, but she's not a thief.

[00:15:55] Speaker 00:
She's a misappropriator.

[00:15:57] Speaker 00:
Same thing here.

[00:15:58] Speaker 00:
Our client used the reasonable judgment that a supervisor would make.

[00:16:03] Speaker 00:
relying on human resources, relying on human resources to do any additional vetting, understanding that this combination of education experience was appropriate, and even relying on her supervisors.

[00:16:13] Speaker 00:
Both supervisors also thought this employee was qualified by reason of education experience.

[00:16:19] Speaker 00:
Not only that, the efficiency of the service wasn't promoted by this penalty determination because, as we all know, our client, Ms.

[00:16:26] Speaker 00:
Doe, and the actually employee, Asuncion,

[00:16:30] Speaker 00:
There are still our employees.

[00:16:32] Speaker 00:
Okay, Ms.

[00:16:33] Speaker 04:
Bell, you're over your time here.

[00:16:34] Speaker 04:
We'll give you two minutes for rebuttal.

[00:16:36] Speaker 04:
Thank you, Your Honor.

[00:16:44] Speaker 05:
Thank you, Your Honor.

[00:16:45] Speaker 05:
May it please the Court?

[00:16:47] Speaker 05:
The charge at issue here, Your Honor.

[00:16:48] Speaker 04:
There's a serious problem here that the charges before the agency

[00:16:55] Speaker 04:
are different than the charges which were sustained by the MSPB.

[00:17:04] Speaker 04:
The agency specifications charged her with hiring this person when she knew that the person didn't have a college degree.

[00:17:13] Speaker 04:
When it gets to the MSPB, everybody agrees that's not a requirement, and yet the MSPB sustains the discipline based on a charge which wasn't made at the agency.

[00:17:25] Speaker 04:
Right?

[00:17:26] Speaker 05:
Well, Your Honor, I look at it a little bit differently.

[00:17:29] Speaker 05:
First, I will remind the court that the purpose of the specifications, again, the charge is negligence.

[00:17:34] Speaker 05:
In any way you slice it, the agency has proved negligence.

[00:17:36] Speaker 04:
No, but address the question of whether the charge at the agency and the decision of the board were on different theories.

[00:17:44] Speaker 05:
The agency's specification did limit it to lack of a bachelor's degree.

[00:17:50] Speaker 05:
I agree that the board took it a step further and said, not only did you not have a bachelor's degree, but you didn't do your due diligence to determine whether they employ.

[00:17:58] Speaker 05:
Well, it's proper because the specifications, again, are designed to put Ms.

[00:18:02] Speaker 05:
Doe on notice as to why she's being charged with negligence.

[00:18:05] Speaker 05:
And she was put on notice.

[00:18:06] Speaker 05:
There was never at any point in the record where she's raised that she didn't understand the charges against her, and she had an opportunity to defend against the charges against her.

[00:18:14] Speaker 05:
Indeed, in response to the notice, she mentioned that there are other ways to qualify for the position.

[00:18:19] Speaker 04:
But the deciding official didn't make a decision based on that theory.

[00:18:26] Speaker 04:
He said that you believe that a college degree was required and you knew she didn't have a degree.

[00:18:36] Speaker 04:
That's the sum and substance of what the deciding official said, which is not the same thing as the decision of the MSPB.

[00:18:45] Speaker 05:
I give you that, Your Honor, that there is a slight broadening, again,

[00:18:49] Speaker 05:
It's not slight.

[00:18:51] Speaker 04:
It's quite significant, isn't it?

[00:18:54] Speaker 04:
I mean, why do you keep saying slight?

[00:18:56] Speaker 05:
Well, it doesn't change the facts, right?

[00:18:58] Speaker 05:
The uncontroverted facts are that Ms.

[00:18:59] Speaker 05:
Doe knew Ms.

[00:19:01] Speaker 05:
Asuncion did not possess a bachelor's degree.

[00:19:03] Speaker 05:
She hired her fully aware she didn't possess a degree and without doing any due diligence, as she's admitted, to determine whether she otherwise met the requirements.

[00:19:11] Speaker 04:
So even if- But that's not what she was charged with before the agency.

[00:19:15] Speaker 05:
Well, she was charged with hiring and promoting Ms.

[00:19:18] Speaker 05:
Asuncion in 2006 and 2009, knowing she didn't have a degree.

[00:19:23] Speaker 05:
And that she did.

[00:19:24] Speaker 05:
The agency proved that.

[00:19:26] Speaker 05:
She was well aware she didn't have a degree.

[00:19:28] Speaker 05:
And if I could just address the HR point, it was HR who contacted her.

[00:19:32] Speaker 04:
Wait, wait, wait.

[00:19:33] Speaker 04:
Put aside the HR point.

[00:19:34] Speaker 04:
I'm trying to address the question of the differences between the charge before the agency and the charge that was sustained by the Merit System Protection Board.

[00:19:44] Speaker 04:
They're just different, aren't they?

[00:19:46] Speaker 05:
They are aligned in that they both charged the hiring and promotion of someone without a bachelor's degree.

[00:19:54] Speaker 05:
And at the MSPB, they went a step further and said, you also didn't do your due diligence to determine that she was otherwise required.

[00:20:00] Speaker 02:
Well, why did the specification include the charges of both, of having the degree and the combination and being negligent on that?

[00:20:09] Speaker 02:
It didn't do that.

[00:20:10] Speaker 05:
It did.

[00:20:11] Speaker 05:
I give you that the specification is not perfect.

[00:20:14] Speaker 05:
It either included an extra word.

[00:20:16] Speaker 02:
If the specification is not perfect, then how is an employee to have due process, to have knowledge, and to be informed of the charges that are being brought against her?

[00:20:26] Speaker 05:
Well, here she did.

[00:20:27] Speaker 05:
This is a prime example, right?

[00:20:28] Speaker 05:
The charge against her was negligence.

[00:20:30] Speaker 05:
The specification was not perfect in that it didn't.

[00:20:34] Speaker 02:
Let's stay away from the facts for a little bit, and let's stay on the specification, because you said it wasn't perfect.

[00:20:40] Speaker 02:
And I agree.

[00:20:41] Speaker 02:
And it seems to me that an imperfect specification is suspect from the very beginning.

[00:20:50] Speaker 05:
Respectfully, Your Honor.

[00:20:52] Speaker 05:
But in this case, even with the specification not being perfect, the facts show it wouldn't change a thing.

[00:20:58] Speaker 05:
Ms.

[00:20:58] Speaker 05:
Doe was on notice as to the charge against her.

[00:21:00] Speaker 04:
The stock case says that there isn't any harmless error theory that you can use in the context of a due process violation.

[00:21:09] Speaker 05:
But Ms.

[00:21:09] Speaker 05:
Doe,

[00:21:10] Speaker 05:
did have an opportunity to defend.

[00:21:12] Speaker 05:
There was no due process violation.

[00:21:14] Speaker 04:
In response to the notice, she very much... She wouldn't have had the opportunity to present her case to the deciding official, to the agency, unless she were properly charged before the agency.

[00:21:25] Speaker 04:
That's the problem.

[00:21:26] Speaker 04:
Well, Your Honor, the point... That's a due process violation under our cases, not having the opportunity to address the actual charge before the agency.

[00:21:37] Speaker 05:
Well, she did address it.

[00:21:38] Speaker 05:
So the point is that the specification didn't go a step further and include the language that there was another way to qualify.

[00:21:45] Speaker 02:
That's a harmless error argument you're making.

[00:21:48] Speaker 05:
But she brought that defense.

[00:21:50] Speaker 05:
So she did have an opportunity to respond.

[00:21:52] Speaker 02:
She argued in the general sense, but she never was charged with that.

[00:21:56] Speaker 02:
So how can she be held to have neglected something that she was not charged with?

[00:22:03] Speaker 05:
I know you asked me to step away from the facts, but when we look at the facts,

[00:22:06] Speaker 05:
She absolutely was negligent.

[00:22:09] Speaker 05:
She did not qualify.

[00:22:10] Speaker 05:
She didn't determine evidence.

[00:22:11] Speaker 04:
But it's irrelevant.

[00:22:13] Speaker 04:
It's irrelevant whether she was in fact negligent.

[00:22:15] Speaker 04:
Maybe if there had been a proper specification here, we'd say that the board's decision supported by substantial evidence case over with.

[00:22:23] Speaker 04:
But that's not an argument that can support an improper specification.

[00:22:30] Speaker 05:
But the purpose of the specification, Your Honor, is again to put Ms.

[00:22:33] Speaker 05:
Dill on notice as to what the charge against her is.

[00:22:35] Speaker 05:
There is no doubt the record is clear.

[00:22:37] Speaker 05:
There has never been a point at which, until post hoc now, Ms.

[00:22:40] Speaker 05:
Doe has raised any confusion about what the charge against her was.

[00:22:44] Speaker 05:
And in fact, she brought all her valid defenses before it.

[00:22:47] Speaker 04:
I don't think there was any confusion as to what the charge was before the agency.

[00:22:50] Speaker 04:
The charge before the agency was a different one than the one that the board addressed.

[00:22:54] Speaker 05:
Well, the charge was negligence for hiring and promoting someone without a bachelor's degree.

[00:22:59] Speaker 05:
That was proven.

[00:23:00] Speaker 05:
She absolutely hired and promoted Ms.

[00:23:02] Speaker 05:
Sochian

[00:23:03] Speaker 05:
knowing full well that she had no bachelor's degree, and further without doing any due diligence to determine whether or not she was qualified.

[00:23:10] Speaker 01:
Well, that's their concern, is that HUD demoted this person because HUD found, based on its charges, that Ms.

[00:23:22] Speaker 01:
Doe hired someone knowing that that person didn't have a bachelor's degree, period.

[00:23:28] Speaker 01:
Then we get to the board, and the board says, yes, it's fine to demote her,

[00:23:33] Speaker 01:
because she failed to investigate whether or not Mrs. Samcion qualified under some alternate way other than not having a bachelor's degree.

[00:23:43] Speaker 01:
And just sitting here thinking about those two separate reasons for demoting Ms.

[00:23:52] Speaker 01:
Doe, they sound a little different.

[00:23:54] Speaker 05:
Well, the board also said you failed to, the board also said you were negligent and that you were well aware that she did not possess a bachelor's degree.

[00:24:02] Speaker 05:
That point is on contrary.

[00:24:04] Speaker 01:
But if the board had stopped right there, then we would have alignment between what the board did and what HUD did.

[00:24:11] Speaker 01:
And then we could review the merits of that.

[00:24:14] Speaker 01:
But right now, it feels like we have some form of misalignment between what the board said and what the board ultimately relied upon, because the board really ultimately landed on, as far as I can tell, a conclusion that

[00:24:28] Speaker 01:
this person, Ms.

[00:24:29] Speaker 01:
Doe, needed to do this investigation, did not do this investigation, and therefore, because of the lack of doing the investigation, she was negligent in her duty as a hiring person.

[00:24:39] Speaker 05:
The only reason she would have needed to do the investigation was because the specification was met.

[00:24:44] Speaker 05:
In the first instance, she was well aware that there was no bachelor's degree.

[00:24:48] Speaker 05:
There would be no need to do any further investigation if

[00:24:51] Speaker 05:
Ms.

[00:24:51] Speaker 05:
Doe actually made sure Ms.

[00:24:52] Speaker 05:
Assoncion had a bachelor's degree.

[00:24:54] Speaker 04:
But she didn't.

[00:24:55] Speaker 04:
Let's put it this way.

[00:24:56] Speaker 04:
If the board had addressed the specification here and said, we sustained the specification, she improperly hired somebody who didn't have a bachelor's degree, we'd have to reverse that, right?

[00:25:09] Speaker 05:
I'm sorry.

[00:25:10] Speaker 05:
Can you say that again, Your Honor?

[00:25:11] Speaker 04:
If the board had said that she was properly disciplined for hiring somebody without a bachelor's degree,

[00:25:19] Speaker 04:
We'd have to set that aside, right?

[00:25:21] Speaker 04:
We'd have to reverse.

[00:25:22] Speaker 05:
Why would you have to reverse that, Your Honor?

[00:25:24] Speaker 04:
Because that's not the criterion for hiring.

[00:25:28] Speaker 05:
But Mistel was still in that room.

[00:25:31] Speaker 04:
No, no, no.

[00:25:31] Speaker 04:
It's not the criterion.

[00:25:32] Speaker 04:
You could read that.

[00:25:33] Speaker 04:
Having a college degree was not a requirement, right?

[00:25:36] Speaker 05:
It was not the only requirement, right?

[00:25:38] Speaker 04:
So if you had a college degree.

[00:25:39] Speaker 04:
No, no, it was not a requirement, period.

[00:25:41] Speaker 05:
It is a requirement.

[00:25:42] Speaker 04:
No, it was not a requirement.

[00:25:43] Speaker 04:
There was an alternative way she could be hired, right?

[00:25:47] Speaker 05:
It was a qualification for the position.

[00:25:48] Speaker 05:
And in fact, the agency.

[00:25:50] Speaker 05:
How can you say that?

[00:25:52] Speaker 05:
If you don't have a bachelor's degree, then we could look at this other sort of combo that Ms.

[00:25:57] Speaker 05:
Doe admits she never looked at, if you don't have a bachelor's degree.

[00:26:01] Speaker 05:
But if a bachelor's degree exists, then the buck stops there, and she would have been qualified.

[00:26:05] Speaker 05:
So that's the point, Your Honor, is that that next step would have never arisen.

[00:26:09] Speaker 04:
You are not required to have a bachelor's degree for this position, right?

[00:26:14] Speaker 05:
Having a bachelor's degree is not the only way that you could be qualified for this position.

[00:26:18] Speaker 04:
No, it is not the requirement for this position.

[00:26:22] Speaker 05:
It is not the only way you could qualify for this position.

[00:26:24] Speaker 04:
No, no, that's not my question.

[00:26:25] Speaker 04:
It is not a requirement for this position, right?

[00:26:28] Speaker 05:
Not if you're able to otherwise establish through a combination of professional experience and education plus 25 course hours.

[00:26:37] Speaker 05:
That is an alternative method of qualifying for the position.

[00:26:40] Speaker 05:
All of this, Ms.

[00:26:41] Speaker 05:
Dole should have known as a hiring official.

[00:26:43] Speaker 05:
And that is why what she knew or didn't knew, although my opponent makes much of that, the fact of the matter is she was still negligent.

[00:26:50] Speaker 05:
Because as a hiring official, she was well aware.

[00:26:53] Speaker 02:
At that point, I see a problem with going back and saying this is what Mrs. Doe should have known or not have known based on this imperfect specification.

[00:27:05] Speaker 02:
Because the specification did not give her notice as to

[00:27:09] Speaker 02:
Also, the combined, you're being charged with negligence for failing to determine whether she met the combined alternative.

[00:27:19] Speaker 05:
I understand your point, Your Honor.

[00:27:21] Speaker 05:
But again, I would just go back to the facts of this case.

[00:27:24] Speaker 05:
And in this case, we absolutely know, even had the specification continued on with the language given the alternative method.

[00:27:31] Speaker 02:
Don't you see your arguments as being basically arguing harmless error?

[00:27:37] Speaker 05:
I understand, Your Honor.

[00:27:38] Speaker 02:
OK, and harmless care does not apply in these type of situations where we're dealing with due process.

[00:27:44] Speaker 02:
And the specification, the information contained in the specification is all about due process, putting the employee on notice as to what the charge is.

[00:27:53] Speaker 05:
Right.

[00:27:54] Speaker 05:
But my response, though, is that Ms.

[00:27:55] Speaker 05:
Doe was always on notice.

[00:27:56] Speaker 05:
And that record is clear that from the very beginning, she raised the alternative method.

[00:28:00] Speaker 02:
The problem here is that then we just let the government go and put the onus on the employee to guess

[00:28:08] Speaker 02:
what type of charges are brought against them, and to an employee under our law and precedent defend herself and has notice as to the charges that are being brought against her based on the specification.

[00:28:26] Speaker 05:
I agree, Your Honor.

[00:28:27] Speaker 05:
And the agency maintains that she was indeed on notice here, as evident by her understanding the charge and defending against it.

[00:28:35] Speaker 05:
So we would ask the court.

[00:28:37] Speaker 05:
And Your Honor, if I could just make one point, I'm sorry about HR, because I just want the record to be clear that HR did contact Ms.

[00:28:44] Speaker 05:
Doe to advise her that Ms.

[00:28:45] Speaker 05:
Asuncion did not have a degree.

[00:28:47] Speaker 05:
Ms.

[00:28:48] Speaker 05:
Doe contacted HR back to inform HR that the discrepancy was resolved.

[00:28:52] Speaker 05:
So I just want the record to be clear that for HR's purposes, they had provided notice that this was a candidate who did not have a bachelor's degree.

[00:29:02] Speaker 05:
So I just wanted to make that point.

[00:29:03] Speaker 05:
Thank you, Your Honor.

[00:29:04] Speaker 05:
Department of Housing and Urban Development will ask the court to affirm the court's decision, sustaining the charge against Ms.

[00:29:09] Speaker 05:
Doe.

[00:29:10] Speaker 04:
Thank you, Ms.

[00:29:11] Speaker 04:
Murphy.

[00:29:12] Speaker 04:
Ms.

[00:29:12] Speaker 00:
Miller, you have two minutes.

[00:29:16] Speaker 00:
The harmfulness of this changing of theories of negligence is really demonstrated by the fact that HUD has the burden of proof.

[00:29:24] Speaker 00:
If they want to demote and suspend an employee for misconduct, they have to

[00:29:29] Speaker 00:
So the harmfulness here is that HUD had the obligation to determine that this employee was not qualified by virtue of a college degree and or other experience in education.

[00:29:41] Speaker 00:
Here, we know that this employee had 21 hours and there was another class that could have qualified.

[00:29:48] Speaker 00:
Even at the hearing, the human resources official said, I would have investigated, that would have been my job to investigate.

[00:29:55] Speaker 00:
So even if the agency was... But Ms.

[00:29:58] Speaker 01:
Doe never investigated.

[00:29:59] Speaker 01:
She never got the transcripts, right?

[00:30:02] Speaker 01:
So she could never have honestly said, I know this person was qualified through this combination of education and work experience because I looked at the transcripts.

[00:30:11] Speaker 01:
That wouldn't be an honest thing to say because she never looked at the transcripts.

[00:30:14] Speaker 01:
So she could have no possible idea of knowing whether or not Mrs. Sancion was in fact qualified through this alternative means.

[00:30:23] Speaker 01:
Is that fair to say?

[00:30:24] Speaker 00:
Yes.

[00:30:25] Speaker 00:
And because she wasn't placed on notice of that kind of misconduct, then she was unable to present that kind of evidence at a hearing.

[00:30:31] Speaker 00:
So for example, the HUD would have had to bring in evidence that this person wasn't in fact qualified by all those courses that she had.

[00:30:37] Speaker 00:
They didn't prove that.

[00:30:39] Speaker 00:
In fact, our clients said, well, I looked at it.

[00:30:40] Speaker 01:
It seems like she was qualified.

[00:30:41] Speaker 01:
This is a different question.

[00:30:42] Speaker 01:
I mean, I'm talking about the board's articulation right now.

[00:30:47] Speaker 01:
The board's articulation is, regardless of whether or not, as a matter of fact,

[00:30:52] Speaker 01:
Mrs. Sancion had all the credits and the required classes that would qualify under this combination theory.

[00:30:59] Speaker 01:
The problem for Ms.

[00:31:00] Speaker 01:
Doe is she never investigated it.

[00:31:02] Speaker 01:
And because she never investigated it, she had really no reasonable basis to believe this person was qualified, knowing that this person didn't have a college degree.

[00:31:12] Speaker 01:
And that would be, therefore, a finding of negligence.

[00:31:16] Speaker 01:
Does that make sense?

[00:31:17] Speaker 00:
It does, but our common law definition of negligence is that you have a duty and that you're breached and a reasonably prudent person under similar circumstances would take the same action.

[00:31:27] Speaker 00:
So it's a reasonably prudent standard.

[00:31:29] Speaker 00:
And here, we believe that not only did our client testify, but the substantial evidence in this record from her two senior executive supervisors, from the human resources managers that testify, that they all knew at three different periods of time over this 10-year period.

[00:31:44] Speaker 00:
this employee did not have a college degree and let her still continue to work, that our client was reasonable.

[00:31:50] Speaker 00:
She was a reasonable supervisor to rely on not only this employee's great work, her knowledge of the work, her knowledge of what she believed to be her qualifications based on that combination.

[00:32:02] Speaker 00:
And Human Resources told her, through her managers, which communicated this to her, that that's fine.

[00:32:08] Speaker 00:
It's your call.

[00:32:09] Speaker 00:
It's your judgment.

[00:32:10] Speaker 00:
So 10 years to come back later and blame her and make her the scapegoat.

[00:32:15] Speaker 00:
for this agency just really missing the ball and not doing its job to verify this employee's credentials.

[00:32:22] Speaker 00:
We believe that a reasonably prudent supervisor would have done just what Ms.

[00:32:26] Speaker 00:
Doe did, rely on her supervisor's employee's work experience.

[00:32:30] Speaker 04:
Let me ask you a question.

[00:32:31] Speaker 04:
Suppose we were to conclude, hypothetically, that there was discrepancy between the charge before the agency and the decision of the MSPB, which went on a different theory.

[00:32:40] Speaker 04:
And suppose we decide that and say, OK,

[00:32:43] Speaker 04:
we've got to set aside at this point.

[00:32:46] Speaker 04:
Do we have to address the question of whether the board's theory of negligence is supported by substantial evidence?

[00:32:54] Speaker 00:
We submit no, and that's simply because that was not what the charge was that she was defending.

[00:32:59] Speaker 00:
But if, in fact... But we don't have to reach that question.

[00:33:02] Speaker 00:
You do not, sir.

[00:33:04] Speaker 00:
And alternatively, if you felt that you wanted to re-examine whether or not she was truly negligent, then we would submit that

[00:33:12] Speaker 00:
the penalty is certainly doesn't support the efficiency of the service either.

[00:33:15] Speaker 00:
There's so much wrong here.

[00:33:17] Speaker 00:
The agency should not be excused for failing to prove what is charged.

[00:33:21] Speaker 00:
It just shouldn't be.