[00:00:01] Speaker 04:
Good morning, everyone.

[00:00:03] Speaker 04:
The first argued case this morning is number 17-1201, Mackey against the Department of Justice.

[00:00:10] Speaker 04:
Mr. Saenz.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:14] Speaker 01:
I'm Kevin Burns for the appellant.

[00:00:16] Speaker 01:
The central issue in this case is whether or not Mr. Mackey established credible evidence on several matters that military status was a motivating factor.

[00:00:28] Speaker 01:
The reason I say that is because

[00:00:30] Speaker 01:
The problem to me with the MSPB opinion is that both the MSPB and the ALJ sort of looked at the case and concluded backwards of Sheehan that there was no evidence to establish discrimination so therefore my client could not prevail.

[00:00:47] Speaker 01:
Let's look at the individual issues that arose because I think the case needs to be taken as a whole.

[00:00:53] Speaker 01:
My client joined the DEA by submitting an application

[00:00:58] Speaker 01:
a year and a half before he was hired on.

[00:01:01] Speaker 01:
In that application, he indicated he had service that could qualify as law enforcement service.

[00:01:07] Speaker 01:
But the issue wasn't whether it qualified.

[00:01:09] Speaker 01:
The issue for the judge and for the board was whether or not Mr. Mackey, by accepting a GS7 position, had waived his right to essentially protest the issue.

[00:01:21] Speaker 01:
And we know that because the evidence presented at the hearing itself was that Mr. Mackey's testimony was credited by the judge

[00:01:28] Speaker 01:
And there was no contrary testimony to show that he couldn't qualify as a nine and couldn't have been brought in as a nine.

[00:01:34] Speaker 03:
So I remember correctly that Mr. Mackey, he applied for the GS7 position and he was given the option to withdraw his application and

[00:01:47] Speaker 03:
apply for the GS9 position.

[00:01:49] Speaker 03:
Do I remember that?

[00:01:50] Speaker 03:
And he chose not to do that.

[00:01:51] Speaker 03:
Do I remember that correctly?

[00:01:53] Speaker 01:
Well, I wouldn't say he was given the option.

[00:01:55] Speaker 01:
The way that it happens is he applies for a position.

[00:01:59] Speaker 01:
The grading is done at the time he comes on board.

[00:02:02] Speaker 01:
And he was told, if you don't want the GS7, you're going to have to reapply, and it might be a couple of years.

[00:02:07] Speaker 01:
And the reason that's significant, Your Honors, is because 37 years ago, in Seeger versus Civiletti,

[00:02:13] Speaker 01:
The same issue was raised for African-American agents who were complaining that they were given the same choices.

[00:02:19] Speaker 01:
And there, Judge Robinson said in the district court that started almost 40 years of litigation, when decisions on graded entry are made in a subjective fashion without objective standards guiding the exercise of discretion, there is great potential for abuse.

[00:02:33] Speaker 01:
And she found that the manner in which the DEA was grading agents, doing this sort of after the fact, without any writings or standards or anything they could

[00:02:42] Speaker 01:
go after was an abuse and was, in fact, an expression of discrimination itself.

[00:02:48] Speaker 01:
No different here, because what happened is when the agency was asked to produce actual evidence of what their grading standards were, they had in our supplemental appendix, they relied on Mark Webb, who was never really designated to talk about that issue.

[00:03:02] Speaker 01:
He was going to talk about promotions.

[00:03:04] Speaker 01:
And I asked Mr. Webb the penultimate question, I'm asking you, do you know, I mean, I want to make sure I understand your role as a witness here.

[00:03:11] Speaker 01:
Are you testifying that you have knowledge of how the agency selects a nine versus a seven for an incoming position?

[00:03:16] Speaker 01:
The answer, I do not know.

[00:03:18] Speaker 01:
Now, against that testimony, we have Mr. Mackey's testimony, which was uncontroverted, that I applied for it.

[00:03:26] Speaker 01:
I was told I was going to come as a seven.

[00:03:28] Speaker 01:
I protested it.

[00:03:28] Speaker 01:
And I was threatened that if I protested it, I would lose the right to be employed and would need to reapply.

[00:03:35] Speaker 04:
But you're telling us that there was a USERA violation at that stage?

[00:03:40] Speaker 04:
in that interaction at the threshold, but there was no objection raised until these ensuing events.

[00:03:48] Speaker 04:
Isn't that right?

[00:03:48] Speaker 01:
No, he raised the objection at the time that his military service should be credited, that he had law enforcement experience in the Coast Guard as a boarding officer.

[00:03:56] Speaker 01:
and as somebody who worked at hearings.

[00:03:58] Speaker 01:
And if you look at the actual application, it talks about things that are akin to law enforcement.

[00:04:03] Speaker 01:
He testified at hearings.

[00:04:04] Speaker 01:
He presented evidence.

[00:04:05] Speaker 01:
He gathered evidence.

[00:04:06] Speaker 01:
He helped formulate suggestions for penalties, things of that nature.

[00:04:10] Speaker 01:
He had that for a year.

[00:04:12] Speaker 01:
And then he had additional experience as a boarding officer.

[00:04:14] Speaker 01:
So when he was hired, he called Joe Love, the recruiter, and said, look, I should be hired to GS9.

[00:04:20] Speaker 01:
And at that point, he was told, if you're going to do that,

[00:04:23] Speaker 01:
We're revoking this position.

[00:04:25] Speaker 01:
You'll have to reapply to the next class.

[00:04:27] Speaker 04:
Because of the military service?

[00:04:30] Speaker 04:
Right.

[00:04:30] Speaker 04:
This is where the difficulty arises.

[00:04:33] Speaker 04:
There are obviously difficulties, but this action ties it to military service and discrimination.

[00:04:39] Speaker 01:
Well, the only reason he was protesting is because he was saying that you're not crediting my time in the military's act of law enforcement.

[00:04:46] Speaker 01:
And he testified that other members of his class who had civilian law enforcement of a year or more were being given GS9s.

[00:04:53] Speaker 01:
And that's the issue.

[00:04:54] Speaker 01:
Did the DEA look at military law enforcement experience as less significant than civilian law enforcement experience?

[00:05:01] Speaker 01:
And he presented evidence at the hearing.

[00:05:03] Speaker 01:
Yes, because my class members that were civilian law enforcement got nines when I got a seven.

[00:05:08] Speaker 01:
And when I protested that fact, I was told that I would lose the right to come into this class.

[00:05:14] Speaker 01:
And the only argument advanced by the agency and accepted by the board was, well, since he accepted the position, that's the issue.

[00:05:23] Speaker 03:
And they also say that the military experience was provided on the SF-86.

[00:05:30] Speaker 03:
And so that impacted... We said that.

[00:05:33] Speaker 01:
I'm assuming that that didn't even account.

[00:05:35] Speaker 01:
I'm accepting their premise that the SF-86 wasn't reviewed by the agency, although there was no evidence whatsoever on that issue.

[00:05:42] Speaker 01:
And in fact, you're not given an offer of employment until after the SF-86 is reviewed for security clearance purposes.

[00:05:47] Speaker 01:
So we found that hard to believe, but I'm accepting the premise that the board itself identifies.

[00:05:52] Speaker 01:
as the basis, which is the sole issue they said is he accepted that position as a GS7.

[00:05:58] Speaker 01:
You can't accept a discriminatory act.

[00:06:01] Speaker 01:
In an equal pay act case, if I take less pay as a woman and I'm then protested later on, it doesn't mean I've waived the right because I took the job.

[00:06:09] Speaker 01:
That would turn discrimination law on its head.

[00:06:12] Speaker 01:
And that's just the beginning of the process.

[00:06:14] Speaker 01:
Then right after he is activated to long-term duty as a reservist,

[00:06:19] Speaker 01:
He's switched around within the agency to multiple transfers.

[00:06:22] Speaker 01:
Now, that under Kudlinski is not a material adverse action, and though I argued that case and I disagree with it, that is the law.

[00:06:29] Speaker 01:
And so what we have there, though, is an expression of the animus he faced for long-term reservist duty, which he was switched back and forth.

[00:06:36] Speaker 03:
And again, the animus... I looked at the record to analyze this, and it's my understanding that two of the transfers occurred before September 27, 2001.

[00:06:48] Speaker 03:
which was the date that Mr. Mackey was first informed that he was being called to active duty.

[00:06:53] Speaker 03:
Do I understand that correctly?

[00:06:55] Speaker 01:
Correct.

[00:06:55] Speaker 01:
But there were a series of transfers that occurred after he came into active duty.

[00:07:00] Speaker 01:
When he came back on active duty, they put him in marijuana interdiction.

[00:07:03] Speaker 01:
And then what they did was those transfers as Jerome Hutchinson, I mean, this wasn't a case where we were just relying on Mr. Mackey, and I'll get to that in a second.

[00:07:11] Speaker 01:
An actual supervisor came in and said, yes, this would signal to an agency that this is a problem child.

[00:07:16] Speaker 01:
This is a difficult person to work with and there's a problem with him.

[00:07:19] Speaker 01:
And that occurred in connection with his military service.

[00:07:22] Speaker 01:
So we then presented evidence.

[00:07:23] Speaker 01:
And again, the issue is, did the judge credit that testimony and then did she analyze it correctly under Shia?

[00:07:30] Speaker 03:
Does the fact that two of the transfers occurred before any military service

[00:07:35] Speaker 03:
Does that in any way undermine the claim that these transfers were just because of military service?

[00:07:41] Speaker 01:
No, because there is some legitimacy to transferring new agents in between sections.

[00:07:46] Speaker 01:
The problem is the majority of the transfers occurred either while he was on military service or afterwards.

[00:07:51] Speaker 01:
And when he came back, they put him in marijuana interdiction, which was a low priority section by any stretch of the imagination.

[00:07:57] Speaker 01:
And he complained about that and again was told to simply accept it.

[00:08:01] Speaker 01:
And again, we brought in actual evidence

[00:08:03] Speaker 01:
from a supervisor that could indicate that there was a problem.

[00:08:07] Speaker 01:
And again, if that's connected with military service, then we have met our first prong under Sheehan.

[00:08:11] Speaker 01:
And the problem is, on all these issues, we met our first prong under Sheehan.

[00:08:14] Speaker 01:
They were never asked to conduct an affirmative defense.

[00:08:18] Speaker 01:
They were never even asked to really present evidence.

[00:08:20] Speaker 01:
When we raised this issue about his transfers, they never presented any of the supervisors at the time.

[00:08:26] Speaker 01:
They never brought anyone in to disagree with his view that his transfers were retaliatory.

[00:08:31] Speaker 01:
or that they were related to his military service.

[00:08:33] Speaker 01:
In fact, the only supervisor that did testify supported him, which was Jerome Hutchinson.

[00:08:38] Speaker 01:
The same was true when he was in the asset recovery group.

[00:08:42] Speaker 01:
Even the special agent in charge said, this is the backwater section.

[00:08:45] Speaker 01:
I've never promoted anybody out of it.

[00:08:47] Speaker 01:
People like it.

[00:08:48] Speaker 01:
Older agents like it because they could work nine to five.

[00:08:50] Speaker 01:
He was sent there right after a tour of duty.

[00:08:53] Speaker 02:
Can I ask you to switch gears just a little bit and focus for a minute on

[00:08:59] Speaker 02:
your legal contention about 2312 E. Can you just explain?

[00:09:05] Speaker 01:
Is that the 90 day period?

[00:09:07] Speaker 01:
Yes.

[00:09:08] Speaker 02:
Identify for me precisely what aspect of the conduct of the case that position bears on.

[00:09:21] Speaker 01:
Well, whether that's seen as a reemployment right or simply a discriminatory act, my client

[00:09:26] Speaker 01:
Our position is he is entitled under the statute to 90 days to return to duty following extended deployment.

[00:09:34] Speaker 01:
And the agency itself and its employee military leave activation package.

[00:09:38] Speaker 02:
And when specifically was he denied that asserted right?

[00:09:43] Speaker 02:
Assume that you have that right.

[00:09:44] Speaker 02:
What's the consequence here?

[00:09:46] Speaker 01:
He was told while he was on military service, he didn't return immediately after active duty.

[00:09:50] Speaker 01:
He'd be in trouble.

[00:09:51] Speaker 01:
That was uncontroverted.

[00:09:53] Speaker 01:
In fact, we had another supervisor

[00:09:55] Speaker 01:
We had another employee.

[00:09:56] Speaker 01:
And he did return.

[00:09:57] Speaker 01:
He did.

[00:09:57] Speaker 02:
He was forced to return.

[00:09:59] Speaker 02:
So what harm?

[00:10:02] Speaker 01:
Well, he was denied the 90... The whole purpose for the recovery period is to recognize the difficulties of active duty military service and allow you to reintegrate.

[00:10:11] Speaker 02:
Suppose he is right to the 90 days was violated by being told you didn't have it and he returned.

[00:10:20] Speaker 02:
Therefore, what relief can you get?

[00:10:24] Speaker 01:
You could enjoy the agency from doing that again, or you can credit him 90 days of back time that he could get as potential leave to compensate him for that loss.

[00:10:35] Speaker 01:
The whole purpose for that leave is to recognize the impact of military service and the transition that's needed.

[00:10:41] Speaker 01:
Otherwise, Congress wouldn't have imposed it.

[00:10:43] Speaker 01:
The only case that runs against it was an eight-hour case where somebody

[00:10:47] Speaker 01:
had to come back that day.

[00:10:48] Speaker 02:
But that's the Third Circuit case, which did a fairly full, though I know you disagree with it, statutory analysis.

[00:10:57] Speaker 01:
Pre-changes in the law that expanded the rights of use.

[00:11:01] Speaker 02:
So what are those changes?

[00:11:03] Speaker 01:
Well, the 2011 Congressional Act, which established the hostile work environment, seems to indicate that Congress wanted to give veterans as much leeway as possible on these issues and protect them.

[00:11:15] Speaker 02:
Is there some language change in the statute on 4312A and E?

[00:11:20] Speaker 01:
I don't believe so, but I'm not sure that even if you accept the Third Circuit's premise as a right, that that does much because the agency itself, under its own policy, under its employee military leave activation package, under section 10 of that package, which defines the rights within or the privileges within the DEA,

[00:11:40] Speaker 01:
grants the employee the right to determine that.

[00:11:44] Speaker 01:
What the supervisor, Kressage, did was she took that right away, or that benefit away.

[00:11:49] Speaker 01:
She said, you're going to come back.

[00:11:51] Speaker 01:
She was even told point blank by another person she could not do that.

[00:11:55] Speaker 01:
I mean, she was told it was a violation of USERRA, specifically by another employee, and she rejected that.

[00:12:01] Speaker 01:
And when he came back to duty, what did she have him do?

[00:12:03] Speaker 01:
The necessity for him to get back right away so he could cut ribbons and make dollies and put out postcards.

[00:12:09] Speaker 01:
So again, I think that shows that his military service was demeaned in that respect.

[00:12:15] Speaker 01:
And, you know, again, what we have on the hostile work environment claim is the board accepted the premise that we established in Kudlinski, which I also argued that you don't have to have a current hostile work environment.

[00:12:28] Speaker 01:
Yet the board sort of redid the evidence and said, well, this doesn't really rise to the level of a hostile work environment.

[00:12:34] Speaker 01:
But they didn't look at the case as a whole.

[00:12:36] Speaker 01:
They didn't look at it that if you look at the cases we look at it, from the outset to today, my client's military service as a reservist has caused him to be placed in positions that are non-competitive.

[00:12:48] Speaker 01:
And we think that that's the issue.

[00:12:51] Speaker 01:
I mean, what is the issue for individuals in the military if they know that subtly or not so subtly, their employers are going to do this to them?

[00:13:02] Speaker 01:
And I think that there's enough evidence in this record

[00:13:04] Speaker 01:
that at minimum that the ALJ should have decided he's met the first prong of Sheehan.

[00:13:11] Speaker 01:
Okay, now agency, why did you do this?

[00:13:13] Speaker 01:
Instead, she blasted past that.

[00:13:15] Speaker 01:
She said, well, there's no discrimination.

[00:13:17] Speaker 01:
She didn't even do the balancing test that Sheehan requires.

[00:13:20] Speaker 01:
The significance of that is unlike Title VII, this court has repeatedly said that once we show military service as a factor, as a motivating factor, as something they considered, it's up to them to come forward with evidence and say why they did it.

[00:13:32] Speaker 01:
Instead, we had a burden beyond a reasonable doubt.

[00:13:36] Speaker 01:
In the opinion that's stated, our witnesses maligned by both the ALJ and the MSPB that the only testimony we have is hits.

[00:13:45] Speaker 01:
Right, but there's no contrary evidence.

[00:13:47] Speaker 01:
And if I was in the district court or if I was in a federal trial or even a state court trial, evidence, non-evidence, evidence wins.

[00:13:55] Speaker 01:
And it's not up to the MSPB or the ALJ to discount the testimony of an appellant merely because they're an appellant.

[00:14:02] Speaker 01:
In this case, we had two people come forward to support him, directly on point.

[00:14:07] Speaker 01:
And yet the judge blasted past that as well and dismissed that without even really much of a discussion.

[00:14:14] Speaker 01:
She didn't really discuss the issue of Cressage being told by another employee that she was violating USERRA.

[00:14:21] Speaker 01:
And so, Your Honors, we think that the problem with the case when we come to it is that at the end of the day, the court did not apply, the ALJ did not apply the right

[00:14:33] Speaker 01:
standard under Sheehan.

[00:14:34] Speaker 01:
And that standard has to mean something.

[00:14:37] Speaker 01:
If a court could simply avoid Sheehan by saying, well, we looked at this and we decided no discrimination, then Sheehan means nothing.

[00:14:43] Speaker 01:
Because you take away the way in which the evidence presented.

[00:14:47] Speaker 01:
And Sheehan, ultimately, as all discrimination law, is about how evidence is presented, who has burdens, who must produce what.

[00:14:54] Speaker 01:
That was not done here.

[00:14:55] Speaker 01:
We ask you to reverse.

[00:14:58] Speaker 00:
Thank you.

[00:15:00] Speaker 00:
Ms.

[00:15:00] Speaker 00:
Moses?

[00:15:02] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:15:06] Speaker 00:
I want to first address the idea that the board applied the she-hen factors in a backward analysis.

[00:15:15] Speaker 00:
That's certainly not true.

[00:15:16] Speaker 00:
And the record reflects that first, as it should properly be done, the administrative judge looked at whether Mr. Maki met his initial burden of showing that the agency discriminated against him based on his military service and made a factual finding

[00:15:33] Speaker 00:
that the agency did not as to his claims regarding specifically discrimination.

[00:15:40] Speaker 00:
And I agree that the case should be looked at as a whole.

[00:15:44] Speaker 00:
Mr. Maki has been promoted many, many times.

[00:15:47] Speaker 00:
He is, with the record reflects, now a GS-13.

[00:15:51] Speaker 00:
He started as a GS-7.

[00:15:54] Speaker 00:
His supervisors have glowing remarks to offer about him.

[00:15:59] Speaker 00:
It shows that he has received, the record shows that he has received good performance evaluations and that he hasn't been delayed in receiving any of his promotions during the time that he has been employed.

[00:16:14] Speaker 00:
Specifically also with respect to this 90 day period that Mr. Maki assumes that he is entitled to, the statutory language is sufficient.

[00:16:25] Speaker 02:
Can I, before you get to that, because that actually is of some concern to me, I'm not

[00:16:31] Speaker 02:
I'd like you to help me understand what role that plays in this case.

[00:16:36] Speaker 02:
The 90 day leave period?

[00:16:37] Speaker 02:
The assertion, if he made it, that he was entitled to 90 days of leave before he had to return to work.

[00:16:51] Speaker 00:
So procedurally, it was, and the case has some of the theories have slightly evolved over time, but

[00:17:00] Speaker 00:
Um, one of the claims was, now he's stating was for a re-employment claim.

[00:17:08] Speaker 00:
Um, and the administrative judge correctly determined that that particular claim was not raised and was not properly before her, I'm sorry, him to decide.

[00:17:21] Speaker 00:
So the 90 days leave.

[00:17:24] Speaker 02:
Assume for a minute that that was fair to say you just didn't preserve it.

[00:17:31] Speaker 02:
What else is there to do with the statutory assertion that 4312 A&E together give a right to reemployment even if you wait 90 days before giving notice?

[00:17:50] Speaker 00:
It also appears that Mr. Maki raises the 90 day leave to prove hostile work environment.

[00:17:57] Speaker 00:
that this denial of the request for a 90 day period to return to work served as evidence of a hostile work environment.

[00:18:07] Speaker 00:
But the administrative judge and also the board found that he could not meet the standard for hostile work environment because there is no right to this 90 day

[00:18:23] Speaker 00:
leave period as he claims that it does.

[00:18:25] Speaker 02:
If we were to conclude that actually there is such a right and to disagree with the Third Circuit's view on that question, drawn not in the 90 day context, but in the eight hour context, what consequence would that have for this case?

[00:18:45] Speaker 00:
It really wouldn't change the outcome because what he requested was a 90 day period

[00:18:53] Speaker 00:
before returning to work, but that's not a paid period.

[00:18:56] Speaker 00:
There really is no remedy for that at this point.

[00:19:01] Speaker 03:
Would we have to though remand it for the board to decide that in the first instance?

[00:19:07] Speaker 03:
Because they were looking at the overall hostile work environment claim with an understanding of the law that may have been incorrect, just assuming for a minute that it was incorrect.

[00:19:16] Speaker 00:
Wouldn't we have to remand?

[00:19:18] Speaker 00:
Well, the court certainly can determine, make a legal determination whether remand is necessary.

[00:19:23] Speaker 00:
And in this case, remand certainly would not be necessary because he hasn't articulated a reason why remand would be appropriate for the hostile work environment claim.

[00:19:39] Speaker 00:
He just hasn't even met his initial burden of proving that the agency had some sort of negative attitude toward his military service, such that he was subjected to a pervasive

[00:19:53] Speaker 00:
pattern of harassing behavior that altered the terms or conditions of his employment.

[00:19:59] Speaker 03:
Your view is that even if it were true that he was entitled to 90 days, that that's just one event.

[00:20:08] Speaker 03:
It's not pervasive.

[00:20:09] Speaker 03:
Is that what I understand you to be saying?

[00:20:11] Speaker 02:
Yes, Your Honor, that is what I'm saying.

[00:20:13] Speaker 02:
Did the board rely on the Third Circuit board and view of

[00:20:20] Speaker 02:
2312 in rejecting the hostile work environment claim?

[00:20:25] Speaker 00:
I believe it did, Your Honor, but let me just double check, please.

[00:20:47] Speaker 00:
Well, the way that the board

[00:20:49] Speaker 00:
reviewed that particular claim, the entitlement to 90 days was under the hostile work environment sort of umbrella.

[00:21:01] Speaker 02:
And while the court did not rely on that case in particular, it certainly supports our position that there is... Where, if anywhere, did the board say one reason that

[00:21:17] Speaker 02:
we are rejecting the hostile work environment claim is that in our view, he actually had no such 90 day right.

[00:21:30] Speaker 02:
Because if it didn't rely on that, then whether or not he had such a right would not make any difference in this case.

[00:21:42] Speaker 00:
The board didn't rely on that finding specifically as it relates to

[00:21:47] Speaker 00:
hostile work environment claim.

[00:21:49] Speaker 00:
And really, because of the way that the claim was presented, it was more so presented as a re-employment claim.

[00:21:58] Speaker 02:
But I'm putting aside any... I'm taking as a given for purposes of this discussion that the board and the A.J.

[00:22:07] Speaker 02:
did not abuse their discretion in saying the re-employment claim was not sufficiently pursued.

[00:22:18] Speaker 02:
Can you address for a minute then, I guess, the merits of the 2312 point?

[00:22:22] Speaker 02:
And here's, I guess, my question.

[00:22:24] Speaker 02:
2312, and correct everything that needs correction, what I'm saying.

[00:22:29] Speaker 02:
2312A says, you get your reemployment rights if you do a number of things, you give notice before you leave, and then you comply with E in reporting or giving notice when you come back, basically.

[00:22:45] Speaker 02:
And E, the relevance.

[00:22:47] Speaker 02:
portion on the long-term, long-ish term military service says what you should, shall do is report within, I guess, 90 days.

[00:23:04] Speaker 02:
Why together does that not mean you have a right to your re-employment if you comply with that, nobody can make you do more?

[00:23:15] Speaker 02:
Contrary to what the Third Circuit says.

[00:23:18] Speaker 00:
The purpose of 4312 is to secure re-employment rights for a returning military service member.

[00:23:27] Speaker 00:
And it does in fact stand for the proposition that if you comply with these notice requirements, then the employer must promptly re-employ you, a right to which you are entitled under section 4313.

[00:23:42] Speaker 00:
Nowhere in the language does it say that

[00:23:48] Speaker 00:
The employee is entitled to a 90 day period in the sense that it mandates the employer to allow the employee to have a 90 day period of leave.

[00:24:03] Speaker 02:
Why doesn't the language of 2312A in effect do that?

[00:24:08] Speaker 02:
It says you have your reemployment right.

[00:24:10] Speaker 02:
If you comply with E, the relevant section of E says you must do the 90 day notice.

[00:24:19] Speaker 02:
Why putting those two things together does A not mean nobody can take that right away from you by saying, oh, you don't actually have 90 days.

[00:24:29] Speaker 02:
Report tomorrow.

[00:24:32] Speaker 00:
Well, I just want to take a look specifically at the language of the statute here.

[00:24:43] Speaker 00:
Is this actually 4312?

[00:24:48] Speaker 00:
4312.

[00:24:49] Speaker 00:
And A says, any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to reemployment rights and benefits and other employment benefits of this chapter if

[00:25:09] Speaker 02:
And then go down to three, right?

[00:25:12] Speaker 02:
Three is the relevant one, right?

[00:25:13] Speaker 02:
Right.

[00:25:13] Speaker 02:
Except it's provided in F, the person reports to or submits an application for re-employment to such employer in accordance with the provisions of subsection E. And you go to E and the relevant one.

[00:25:26] Speaker 02:
Yes.

[00:25:27] Speaker 02:
Different paragraphs according to how long you were working, right?

[00:25:30] Speaker 00:
Yes, Your Honor.

[00:25:31] Speaker 00:
And in this particular paragraph that's relevant to this case here,

[00:25:37] Speaker 00:
The employee is required to submit an application for re-employment with the employer, not later than 90 days.

[00:25:47] Speaker 00:
What this does is it prevents an employer from delaying or denying a returning military service member's employment.

[00:25:58] Speaker 00:
And typically in the cases that I've read, it's

[00:26:04] Speaker 00:
that the employer is somehow trying to deny or delay reemployment.

[00:26:09] Speaker 00:
Whereas here, Mr. Maki is trying to sort of flip it on his head and say, he's trying to delay.

[00:26:15] Speaker 00:
And he's saying that this statute entitles him to do so.

[00:26:20] Speaker 00:
But that's just not, the purpose of this is not to allow for mandatory leave period.

[00:26:27] Speaker 02:
Mr. Burns made passing reference to

[00:26:32] Speaker 02:
host 2004 statutory changes enactments, 2004 being the date of I think Gordon and the third circuit, which does quite clearly answer this question in a way supportive of the position that you are asserting.

[00:26:50] Speaker 02:
Has there been either changes that would require modification or justify

[00:26:59] Speaker 02:
a different result than Gordon or have there been reenactments that I guess one term one might use is ratify Gordon?

[00:27:09] Speaker 00:
I am not aware of any changes that would undermine our position or run contrary to how Gordon and Third Circuit has clearly supports our position that

[00:27:26] Speaker 00:
This particular statutory provision just does not provide a right to a rest period.

[00:27:34] Speaker 00:
And a later case, and I don't know if we cite this in our brief, but the Fourth Circuit also supports our position as well, Francis v. Booze.

[00:27:47] Speaker 00:
What is it, Francis?

[00:27:49] Speaker 00:
Francis v. Booze.

[00:27:55] Speaker 00:
That's 452 F3D 299.

[00:28:03] Speaker 00:
And then I also believe that Petty, which Mr. Romache cited in his opening brief and possibly reply brief as well, the Sixth Circuit, also supports our construction and the Third Circuit and the Fourth Circuit's construction of... Can you give me the name of the Sixth Circuit case?

[00:28:25] Speaker 00:
Yes.

[00:28:27] Speaker 00:
That is Petty.

[00:28:36] Speaker 00:
Petty v. Metropolitan Government of Nashville, Davison County.

[00:28:42] Speaker 00:
The citation is 538 F3D 431.

[00:28:49] Speaker 00:
That's a 2008 case.

[00:28:55] Speaker 02:
Francis is presumably around 2006.

[00:28:58] Speaker 00:
Yes.

[00:29:02] Speaker 00:
And if Your Honors don't have any further questions, we ask that you affirm the board's decision.

[00:29:08] Speaker 04:
Any more questions for the guys?

[00:29:11] Speaker 00:
Thank you, Ms.

[00:29:12] Speaker 00:
Burns.

[00:29:15] Speaker 04:
Mr. Burns, three minutes.

[00:29:17] Speaker 01:
Thank you, Your Honors.

[00:29:18] Speaker 01:
I'll be very brief.

[00:29:19] Speaker 01:
A couple of things, I think, that somewhat

[00:29:22] Speaker 01:
What we said, council said that the board decided there was no discrimination and that's why they didn't go any farther.

[00:29:29] Speaker 01:
But the penultimate question of discrimination is only decided after applying the burdens.

[00:29:35] Speaker 01:
So you can't, the only factor, the only emphasis on the factors was military service involved in the decision making.

[00:29:43] Speaker 01:
We don't have to in the first promise, she improved discrimination.

[00:29:47] Speaker 01:
Otherwise there wouldn't need to be a standard.

[00:29:49] Speaker 01:
The second thing they said is on the re-employment right is,

[00:29:52] Speaker 01:
Again, I think if I accept the agency's premise and I accept the premise that it wasn't pitched the right way, which I disagree with because it was raised and we cited in our case law that you can conform evidence to proof.

[00:30:05] Speaker 01:
And I'm not sure there's any case that says that you have to specifically cite the type of discriminatory conduct.

[00:30:11] Speaker 01:
But be that as it may, the agency itself grants that right for him to have that right to return.

[00:30:17] Speaker 01:
And my point is that

[00:30:19] Speaker 01:
Congress set a sliding scale based on the amount of military service.

[00:30:25] Speaker 01:
Congress did not create a right for employers.

[00:30:28] Speaker 01:
It created a right for employees.

[00:30:30] Speaker 01:
And it created a respite period so that returning veterans, returning reservists, particularly coming back from overseas or other combat operations, whatever, could have time to readjust.

[00:30:40] Speaker 01:
That's why it's a sliding scale based on the amount of service.

[00:30:43] Speaker 01:
Whether or not it was a, quote, right

[00:30:46] Speaker 01:
Certainly he was denied the opportunity to even apply for it because prior to anything happening, his supervisor literally called him while he was in active duty and said, you're returning the next day.

[00:30:56] Speaker 01:
And again, I think that it's important in looking at the hostile work environment claim that we didn't raise, the board never really addresses that very much.

[00:31:03] Speaker 01:
It spends about a sentence on it.

[00:31:05] Speaker 01:
The issue is that when he got back, this all important reason, he was given menial tasks, menial labor, demeaning conduct.

[00:31:14] Speaker 01:
And that's part of a pattern where he is, I know they say they promoted him, but they only promoted him along the chain of those promotions he's entitled to.

[00:31:23] Speaker 01:
And they delayed those promotions by a year.

[00:31:25] Speaker 01:
So I'm not sure the fact that they followed certain procedures excuses them from not following others.

[00:31:32] Speaker 01:
I'll finish with this.

[00:31:33] Speaker 01:
The issue of discrimination on any type of discrimination is the psychological attack on the individual because of their status.

[00:31:41] Speaker 01:
It is the message that is sent to the recipient.

[00:31:44] Speaker 01:
that you are not equal, that your factors, you're doing something we don't like, and we're going to make it tough for you.

[00:31:50] Speaker 01:
Now, hostile work environment, as the Supreme Court has repeatedly said, does not have to simply consist of direct statements that I'm harassing you.

[00:31:59] Speaker 01:
If you look at this case as a whole, this gentleman's military service has never been credited for what it is.

[00:32:06] Speaker 01:
And I can think of nothing worse.

[00:32:08] Speaker 01:
And by the way, there is reference to an email in this case

[00:32:10] Speaker 01:
where one of the supervisors called the men who filed these suits, two of the men, cowards.

[00:32:15] Speaker 01:
And that went by the SAC as a matter of opinion.

[00:32:18] Speaker 01:
It's in the record.

[00:32:19] Speaker 01:
I can't think of anything worse for a returning military reservist who spent a year or more on active duty service to be told by an employer, you need to come back here tomorrow because I have some ribbons I want you to cut.

[00:32:32] Speaker 01:
That is this case in a whole.

[00:32:34] Speaker 01:
The government can say whatever it wants about how Mr. Mackey was treated, but Mr. Mackey

[00:32:40] Speaker 01:
was cutting ribbons as a GS-13 special agent against his will.

[00:32:44] Speaker 01:
And as I said in my brief, and I'll finish with this, the government gets around that harassment by saying, well, many agents volunteer.

[00:32:52] Speaker 01:
And as I say, I volunteer to clean the coffee pot every now and then in my office.

[00:32:57] Speaker 01:
I certainly resent the fact that it was made my primary duty.

[00:33:00] Speaker 01:
Thank you, Your Honor.

[00:33:02] Speaker 04:
Thank you.

[00:33:03] Speaker 04:
Thank you both.

[00:33:04] Speaker 04:
The case is taken under submission.